[Congressional Record Volume 141, Number 115 (Monday, July 17, 1995)]
[Senate]
[Pages S10086-S10135]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COMPREHENSIVE REGULATORY REFORM ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of S. 343, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 343) to reform the regulatory process, and for 
     other purposes.

  The Senate resumed consideration of the bill.

       Pending:
       Dole amendment No. 1487, in the nature of a substitute.
       Domenici amendment No. 1533 (to amendment No. 1487), to 
     facilitate small business involvement in the regulatory 
     development process.
       Levin (for Glenn) amendment No. 1581 (to amendment No. 
     1487), in the nature of a substitute.


[[Page S 10087]]

  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, we are already in the second full week of 
this bill. It is an important bill and it does deserve the type of 
consideration that we have been giving to it, but we are, hopefully, 
coming to closure on it.
  This is a very, very important bill to our society. I do not think 
there is anybody in this body that will not admit that our society is 
overregulated. In fact, some people think we are being regulated to 
death, that it will be the end of a great society, the end of the 
greatest country in the world if we keep going the way we are, if we 
have bureaucrats back here, who do not understand the problems out 
there, issuing ridiculous, silly regulations.
  This bill is about common sense. It is putting common sense into the 
regulatory process. It does not mean doing away with regulations. This 
bill means we are going to have to use common sense in coming up with 
regulations. I think most Americans would agree the Federal Government 
is out of control, certainly in terms of the burdens that it places 
upon them and their small businesses in particular.
  What this bill does is it requires governmental agencies to abide by 
rules and regulations that they issue that help rather than hurt our 
people. It will require the Federal bureaucracy to live by the same 
rules that Americans live by in their day-to-day lives.
  Those rules are that the benefits of what you are telling people to 
do have to be justified by the costs of those benefits, the cost 
imposed because of the regulations.
  The notion of common sense and accountability in rulemaking sounds 
like a radical idea inside the beltway, but it is really something 
people want outside the Washington beltway.
  Americans are smothered, inundated. They are drowning in redtape in 
all aspects of their lives, and they are getting tired of it. They have 
asked us to get rid of the status quo and to get some reason into this 
system. This bill certainly does not mean the end of health concerns or 
safety concerns and it certainly does not mean the end of health and 
safety regulations. It just means they have to be regulations that make 
sense. They just cannot be imposed ad infinitum on top of American 
citizens without some justification for the regulations themselves.
  We have seen on the floor of the Senate a lot of effort to maintain 
the status quo. That is at the same time that everybody prefaces their 
remarks with ``the status quo is unacceptable.'' The debate this week 
is going to determine whether we stick with the status quo or whether 
we do some things that will really help our country and resolve some of 
these difficulties. We simply have to get rid of the silly, ridiculous 
regulations.
  In that regard, let me give you my top 10 list of silly regulations. 
This will be list No. 7. I might add that all of these are from Utah 
constituents this time, but they apply across the country. I think you 
will find some similarities in each and every one of our States.
  Silly regulation No. 10: Requiring a company, if they spill just 1 
pint of antifreeze, to call the Coast Guard in Washington, DC, to alert 
them. That is silly.
  Silly regulation No. 9: Purposefully releasing more water from a dam 
to create a flood-stage flow in order to help endangered fish, 
regardless of the farmland that was flooded as a consequence.
  Silly regulation No. 8: Requiring a person who is on a 6-foot 
scaffold to be tethered to a fall protection device which is also 6 
feet high.
  I cannot help laughing at some of these. Some are so bad. This is 
what our people go through out there. The problem is, if you think 
about it, that the person with that 6-foot tether would already hit the 
ground before the device could save him.
  Silly regulation No. 7: Requiring a company to hire an outside 
contractor to check emissions, in spite of the fact the company does it 
themselves every 8 hours.
  Silly regulation No. 6: Refusing to approve a plan to divert a 
portion of a flow of water for stock watering, in spite of the fact 
that it would drain into the same basin. Further, the Bureau of Land 
Management, U.S. Forest Service, State engineer and Utah Department of 
Water Resources all approve of the plan.
  Silly regulation No. 5: Requiring buildings built after the asbestos 
ban took effect to be inspected for asbestos, despite the fact they 
contain no asbestos. That is just typical of what is happening all the 
time. These are specific cases, but it is typical to require stupid, 
idiotic things just because the people back here are not willing to do 
what is right or use common sense.
  Silly regulation No. 4: Requiring a company to use only hand tools if 
they want to replace a concrete ditch with an underground pipeline, 
despite warnings that the ditch may fail. This spring, the ditch did 
fail and flooded the whole surrounding area.
  Silly regulation No. 3: Requiring a contractor to pay a person $55 an 
hour to walk in front of a back hoe to look out for the desert 
tortoise. People in southern Utah are just beside themselves. Can you 
imagine paying a person $55 an hour to walk in front of a back hoe to 
look out for the desert tortoise? Well, I admit, desert tortoises are 
wonderful creatures that ought to be preserved, but there is a limit, 
it seems to me, to this type of stupid action.
  Silly regulation No. 2: Diverting water to aid the ``Lady's Ute tress 
orchid,'' in spite of the fact that this will reduce the flow to a 
family farm with a decreed right to the water. No prior notice of the 
plan diversion was given to the family, nor were they made aware of the 
issuance of a wetlands permit for the plan.
  I have to acknowledge that the Lady's Ute tress orchid, I am sure, is 
a beautiful flower, but I also think that that family farm is 
important, too. That just shows how ridiculous some of these rules and 
interpretations of the rules are.
  Now let us turn to silly regulation No. 1:
   Requiring that a company submit a list to the fire department of all 
the ingredients in their fire proof bricks, sand, gravel, mortar, and 
steel. This semiannual report containing the list of the fire 
department of all of the ingredients of fire proof bricks, gravel, 
mortar and steel is about six inches thick. You wonder why people do 
not want to go into business today or put up with this. This is a 
perfectly good explanation why.

  Well, to make a long story short, it is easy to see why Federal 
regulators--even the good ones--are held in disdain by our people out 
there. And there are good regulators, we know that. We know there is a 
need for good regulation. We know there is a need to have Washington 
operate in a careful fashion to protect health and safety and other 
things.
  On the other hand, these types of interpretations of regulations and 
these types of regulations, I think, bring condemnation upon the 
people, on everybody, even those who are sincere and who do a good job.
  Now, Mr. President, finally, I want to once again address the 
relative merits of S. 343 and the Glenn amendment. Last Friday, I 
stated that the Glenn amendment could be termed ``reg lite,'' because 
it was a somewhat weaker version of S. 291, which was itself a product 
of compromise and, for that reason, unanimously voted out of the 
Governmental Affairs Committee under my good friend, Senator Bill Roth. 
I noted that Chairman Roth explained that S. 343 is a superior vehicle 
for achieving meaningful and effective regulatory reform that neither 
S. 291 or the Glenn substitute does. I also critiqued in some detail 
the Glenn bill's provisions and concluded that S. 343 is a far more 
effective mechanism for regulatory reform--that is, if you really want 
to do something about regulatory reform.
  Last Friday, a modified Glenn amendment was introduced. This is a 
little bit stronger and moves a little bit closer to the Dole-Johnston 
bill by adopting a little more of S. 343's reform measures. The gap is 
narrowing. We appear to be moving closer together. Nonetheless, while 
imitation is the sincerest form of flattery, my original conclusion 
remains the same: S. 343 is a far superior vehicle for regulatory 
reform.
  Let me first say that the Dole-Johnston bill is not a bill that 
simply requires agencies to perform cost-benefit analysis or risk 
assessment. It is a comprehensive regulatory reform measure that, for 
the first time in 

[[Page S 10088]]
about a half century, reforms the Administrative Procedure Act.
  These reforms, many of which were recommended by the Administrative 
Conference of the United States and the American Bar Association, are 
commonsense proposals that make the notice and comment requirements of 
the Administrative Procedure Act more productive. These reforms 
guarantee effective public participation in the promulgation of rules 
and assure that judicial review will be more effective. They provide 
fairness to the administrative process. And most are missing in the 
Glenn substitute.
  More specifically, Dole-Johnston, amends section 553 of the 
Administrative Procedure Act by requiring, among other things, in the 
notice of proposed rulemaking in the rule's statement of basis and 
purpose:
  First, a succinct explanation of the need for and specific objectives 
of the rule.
  Second, a succinct explanation of the statutory basis for the rule, 
including whether the agency's interpretation is clearly required by 
the text of the statute and, if not, an explanation that the 
interpretation selected by the agency is within the range of 
permissible interpretations identified by the agency, and an 
explanation of why the interpretation selected by the agency is the 
preferred interpretation.
  Third, a summary of the cost-benefit analysis required to be prepared 
pursuant to chapter 6 of this bill.
  Fourth, a statement in the proposed stage of the rule that the agency 
will seek proposals from the public and local governments for 
alternative methods of accomplishing the objectives of the rulemaking.
  Fifth, in the statement of basis and purpose, a discussion and 
response to any factual and legal issues raised by the comments to the 
proposed rule, including a description of all reasonable alternatives 
to the rule raised by the agency and the commenters, and the reason why 
such alternatives were rejected.
  All of these statements and explanations must be part of the 
rulemaking file and, along with factual and methodological material 
supporting the basis of the rule, made available to the public for 
inspection and copy.
  These requirements are absolutely essential for regulatory reform. 
They assure that the public has the needed information to cogently 
comment on--or challenge--the rule. They also assured that the courts 
have the needed information to effectively review the factual and legal 
underpinnings of the rule.
  To be sure, without these requirements--and the requirements of 
section 622 that all reasonable alternatives facing the agency in 
rulemaking be identified--judicial review of cost-benefit analysis is 
effectively impossible.
  How can there be review of whether cost justify benefits if all the 
relevant factors facing the agency are not fully disclosed? The absence 
of such requirements are a fatal weakness of the Glenn substitute.
  I also want to point out that these requirements are hardly 
controversial. These rulemaking requirements were all endorsed by the 
American Bar Association, and the American Bar Association has 
correctly criticized the Glenn bill for not containing these needed 
reforms.
  The fairness provisions of Dole-Johnston also constitute significant 
reformation of the administrative process. They include section 707, 
the reform of consent decree provision.
  This section assures that consent decrees are not construed in such a 
way as to limit agency discretion to protect the rights of innocent 
third parties or to respond to changing circumstances. All too often, 
particularly in environmental enforcement actions, sweetheart consent 
decrees are entered into by agencies and special interest environmental 
groups that impinge on the rights of innocent third parties and 
implement the political agenda of those special interests. The Glenn 
bill contains no equivalent provision.
  Section 708 is another one of these fairness provisions. This 
provision prevents impaling the regulated public on the horns of a 
dilemma. An affirmative defense is provided in any enforcement action 
where a regulated party faces compliance with contradictory or 
inconsistent regulations. Who can argue with this fairness provision? I 
guess the sponsors of the Glenn substitute can because it is, again, 
absent from their substitute, from their bill.
  The sponsors of the Glenn bill are also AWOL in not including the 
final of these fairness provisions--section 709. This provision was 
originally in the Judiciary Committee version of S. 343 and was 
unanimously restored to the bill, 80 to 0, by amendment introduced by 
Senator Hutchison last Friday. It prevents the imposition of criminal 
penalties or civil fines in a situation where parties reasonably relied 
on a longstanding position of an agency, and the agency tries to 
retroactively enforce a new interpretation of law or policy. This 
administrative ex post facto provision is a codification of a 
fundamental precept of justice dating back to Magna Carta; yet, it is 
missing from the Glenn substitute.
  Besides Administrative Procedure Act reform, the Glenn substitute 
does not contain certain critical elements of regulatory reform. 
Perhaps the most important missing element is Dole-Johnston's 
``decisional criteria'' section 624. This section is the heart of Dole-
Johnston and constitutes a far more sophisticated and efficacious 
approach to assuring the compliance with cost-benefit analysis and risk 
assessment requirements than does the Glenn approach.
  First of all, this decisional criteria section mandates that no rule 
shall be promulgated unless the rule complies with this section--624. 
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.
  Some will say this is overkill, that agencies will abide by cost-
benefit standards without section 624's hammer. Yet, every President 
since President Ford, including President Ford, right up to the current 
President, President Clinton, have issued Executive orders on 
regulations. And President Clinton's Executive order on regulations 
contains a hammerless cost-benefit analysis requirement, which is why 
it is routinely ignored by all of his Federal agencies and OMB, the 
Office of Management and Budget.
  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 six passed cost-benefit analysis muster.
  The rest were promulgated anyway. So we see there is a need to assure 
agency compliance, because when they will not listen to their own 
President, or their own Presidents through the years, imagine how they 
will not listen to us if we do not go into a compliance process 
together.
  Of the 510 regulatory actions published during this period, this 
period of April to September of 1994, 465 were not even reviewed by the 
Office of Management and Budget; and of the 45 rules that were 
reviewed, not one--not one, not a single one--was returned to the 
agency for having failed the obligatory cost-benefit analysis. They 
call this regulatory reform?
  Moreover, section 624 not only requires, like the Glenn substitute, 
that ``benefits of the rule justify the costs of the rule,'' but unlike 
the Glenn substitute, 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.
  Now, this does two things. No. 1, it assures that the least 
burdensome rule will be promulgated; No. 2, that agencies are not 
straitjacketed, 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 a 
rule.
  What about the effect on existing law? Section 624 of 343 provides 
that its cost-benefit decisional criteria ``supplement" the decisional 
criteria for rulemaking applicable under the statute granting the 
rulemaking authority.
  This supplement requirement is applicable except when an underlying 
statute mandates that a rule to protect health, safety, or the 
environment be 

[[Page S 10089]]
promulgated, and the agency rule cannot, applying in the standard in 
the text of the statute, satisfy the cost-benefit criteria of section 
624.
  In such a case, 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 last 
week. 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 it not be argued that while Glenn 
does not contain a decisional criteria section, forcing agencies to 
abide by cost-benefit analysis and risk assessment criteria, its 
judicial review provision assures that agencies will comply with that 
bill's albeit weak cost-benefit analysis requirement. The answer is, 
unfortunately, no.
  While both S. 343 and the Glenn bill basically only allow for 
administrative procedure action ``arbitrary and capricious" review of 
the final, and not independent review of a cost-benefit analysis and a 
risk assessment, the Glenn judicial review section contains a provision 
that perhaps inadvertently 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 expressly states that ``if an analysis or assessment 
has been performed, the court shall not review to determine whether the 
analysis or assessment conform to the particular requirements of this 
chapter.''
  This means that a poorly or sloppily done cost-benefit analysis or 
risk assessment could avoid judicial scrutiny even if material to the 
outcome of a rule, because the Glenn judicial review section literally 
states that the bill's ``requirements" for analysis and assessment are 
not reviewable.
  Now, that is serious. That is a critical difference on the judicial 
review aspects of these two approaches, S. 343 and the Glenn substitute 
amendment.
  Another significant reform contained in S. 343 but 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 affected by 
existing burdensome regulations 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 the 
rule on the agency schedule for review, or in effect to accelerate 
agency review of rules already on the agency's schedule 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 between Senators Kerry, Levin, Biden, Johnston, Roth, 
Nickles, Murkowski, Bond, Dole, and myself.
  One other petition provision that I want to mention is section 629, 
which allows for the petitioner to seek an alternative means to comply 
with the requirements of a rule. This allows for needed flexibility 
that will save industry untold amounts of money and having to comply 
with sometimes irrational requirements, without weakening the 
protection of health, safety, or the environment.
  In this way, agencies are given great latitude in promulgating cost-
effective rules. In this way, agencies can do a better job.
  Moreover, the following provisions of S. 343 are much better than 
their counterpart provisions in Senator Glenn's.
  Risk assessment provisions: S. 343 applies its risk assessment and 
risk characterization principles to all agency major rules. The Glenn 
amendment, by sharp contrast, limits even the applicability of the risk 
assessment and risk characterization principles to major rules 
promulgated by certain listed agencies and it contains no decisional 
requirements for risk assessments.
  Emergency provisions: The Dole-Johnston bill contains exemptions for 
imposition of the notice and comment, cost-benefit analysis, and risk 
assessment requirements. When an emergency arises where a threat to 
public health and safety arises, these provisions would allow for a 
rule that addresses these concerns to promptly go into effect. There is 
absolutely no delay. The government can protect our health and safety 
in all of these cases, including the red herring of E. coli. The Glenn 
substitute, on the other hand, only contains one exemption, and that is 
for risk assessments.
  As I pointed out last Friday, this contains an element of irony. The 
supporters of the Glenn measure have complained endlessly how S. 343 
would prevent the agencies from protecting the public from 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 the 
problem. But Glenn does not. There is not even similar language.
  Where are the equivalent provisions in the Glenn substitute? Does the 
Glenn substitute exempt these types of rules from cost-benefit 
analysis? No. It is apparent, Mr. President, that the Dole-Johnston 
measure is a superior vehicle for regulatory reform. I ask my 
colleagues to vote against the Glenn ``reg lite'' bill and support the 
real thing. I yield the floor.
  The PRESIDING OFFICER (Mr. Jeffords). The Senator from Ohio.
  Mr. GLENN. Mr. President, last week I took the floor to reply to some 
of the top 10 silly regulations that the Senator from Utah had brought 
up last week. We found, upon investigation, that of some of those silly 
regulations last week there were, probably a good half of them, I do 
not know the exact number, but probably half of them I gave responses 
to that showed that the so-called silly regulations were not 
regulations at all and were, in some cases, municipal or State 
regulations that were being somehow tossed over into the Federal 
bailiwick of responsibility. And I gave real details on that, and it 
caused considerable concern on the other side of the aisle, I 
understand.
  I do not know the regulations that were cited this morning, how they 
originated or what their backgrounds are, but I hope we have better 
substantiation for the ones given this morning than we did for the ones 
last week. If we wish to take up our time here going through those, we 
can do that again like the ones that were put in last week. But we 
found in many of the cases mentioned they were not Federal regulations 
at all. There was no requirement in Federal law for some of the things 
that Federal regulators were being credited with doing.
  So what we are trying to do is bring some common sense to this 
regulatory process. I have said many times during this debate, 
regulatory reform is probably the most important issue we will take up 
this year, outside of the actual appropriations bills, because it 
affects every person in this Chamber today, whether on the floor, in 
the gallery, every person outside, every man, woman, child, every 
business, every organization across the whole United States of America. 
So regulatory reform is one of the most important items.
  The American people want regulatory reform. I want regulatory reform. 
I believe the vast majority of Members of Congress do. I do not know of 
anybody who does not want regulatory reform. When we go back to our 
States, the horror stories we hear every time are about some of the 
rules and regulations that are too heavyhanded and too intrusive, so we 
need to correct those things. The question is, how will we correct 
them? If we are drowning in red tape, how do we correct it?
  I have made no effort to retain the status quo, in spite of what was 
said this morning. Quite the opposite. I do not want to retain the 
status quo. That is the reason why we worked 2\1/2\ years on the 
Governmental Affairs Committee to try to get responsible regulatory 
reform legislation ready. We have 

[[Page S 10090]]
heard a lot of talk about specific instances of regulatory excess. And, 
as I have pointed out, many of these stories are just factually not 
true. But even for those that may be true, let us make sure that the 
medicine we prescribe is not worse than the illness we want to cure. 
Individual instances of excess do not justify bogging down our 
Government with equally excessive bureaucratic procedures and 
litigation, and that is what I fear the proponents of S. 343 are giving 
us.
  Instead of making Government more cumbersome, more bureaucratic, and 
more expensive, we should be working to make the regulatory process 
more effective, more efficient, and less burdensome. Regardless of our 
debates about process, about how Federal agencies should make 
decisions, we must not forget what the process is all about. The 
regulatory process is about protecting the public interest. It is about 
implementing the laws that we in Congress pass. It is about providing 
for the common good, protecting public health and safety, preserving 
the environment, and making this country a land of opportunity for all 
and, at the same time, correcting regulatory excesses to make sure that 
those just do not happen. That is a balance. It is a balance that we 
have to seek and it is a balance that I think we have addressed in S. 
1001, which was laid down last Friday afternoon.
  That is why, as we debate how to reform the regulatory process, we 
must ask ourselves two essential questions--basically what I stated a 
moment ago. First, does the bill before us provide for reasonable and 
appropriate changes to regulatory procedures to eliminate unnecessary 
burdens on businesses and individuals and organizations and everyone 
all over this country? And, second, does the bill maintain our ability 
to protect the environment and the health and the safety of our people? 
In other words, does the legislation strike an appropriate balance? 
That is what we have to find in this debate--is the balance.
  If we find the proper balance, there will be broad support for this 
effort. However, if we produce a bill that relieves regulatory burdens 
but threatens protections for the American people in health and in 
safety or the environment, the legislation should be opposed.
  Today we will focus our debate on two bills, the Dole-Johnston 
substitute and the Glenn-Chafee substitute to that substitute. Both 
will transform the regulatory process, but I am convinced that the 
Dole-Johnston substitute goes too far. I believe that only the Glenn-
Chafee substitute will reform the regulatory process in a way that 
meets my tests just outlined. The Glenn-Chafee bill will relieve 
burdens and maintain an efficient and effective process to protect 
public health and safety and the environment.
  Before I discuss the differences between the two bills, I want to 
review the debate of last week, because I believe that this past week's 
debate alone, just standing by itself, makes the case for the Glenn-
Chafee substitute.
  Proponents of the Dole-Johnston substitute have repeatedly stated 
that their bill is a good bill, that their bill went through a long 
process of improvement before coming to the floor, and that it is ready 
for enactment. But I believe our activities on the Senate floor last 
week proved otherwise. When confronted with the challenge that their 
bill would threaten important health and safety rules--impending rules, 
now, not just something thought about for the future, but important 
pending health and safety rules such as those for food safety, drinking 
water, mammograms--the proponents of Dole-Johnston first denied that 
their bill would compromise those regulations. Then they tried to add 
general and symbolic exemptions just in case, like the sense-of-the-
Senate resolution that was supposed to be a substitute for the Boxer 
amendment protecting mammogram rules. But when all the votes were done, 
we see that they voted against meat and poultry inspection rules, 
putting the American people at risk due to the dangers of E. coli and 
other foodborne diseases; and that they voted against drinking water 
safety rules. But we see that they voted for mammogram rules and for 
child poisoning protection rules.
  I do not think my colleagues value food and drinking water safety 
less than women's or children's health. What I really think is that the 
proponents of the Dole-Johnston bill have yet to come to terms with the 
fact that their bill fails my test. It may reduce regulatory burdens--
it will do that--but it will also jeopardize public health and safety 
and the environment. In other words, it does not hit the balance that I 
spoke about earlier.
  They say their bill will not harm the public but they are not really 
sure. I am sure that the Glenn-Chafee substitute will protect the 
public and reduce regulatory burdens, and I say we should support that 
Glenn-Chafee substitute.
  When it came time last week to discuss the effect of their bill on 
the implementation of current laws, again we saw confusion and 
uncertainty. Throughout the negotiations, prior to coming to the floor, 
and during the first hours of debate, the proponents again and again 
denied that their bill contained a supermandate--that is, a prevision 
that would have economic cost-benefit analyses override other statutory 
requirements if there was any conflict between the two.
  Those other statutory requirements are things like clean air, clean 
water, and worker safety. Even so, they refused to add language to 
clearly state that assertion, that in a case of a conflict between the 
cost-benefit test and the statutory requirement, the underlying statute 
would prevail. In other words, there would not be a supermandate that 
said: If there is a conflict, that the earlier law would be knocked 
out. Their provision would have provided that, if there was a conflict 
between the rule that came up and a previous law passed by the 
Congress, signed by the President, and in effect all over this country, 
the underlying statute could be knocked out by a regulation.
  Finally, on the floor an amendment appears from the proponents to do 
just that, to say that if there is a conflict between the cost-benefit 
test and the statutory requirement, that the underlying statute would 
prevail. Again, I have to ask why was the Dole-Johnston bill brought to 
the floor in the form it was? The proponents insisted it was in fine 
shape and provided just the right amount of reform, but when pressed on 
the floor, their arguments went both ways and the weaknesses of the 
bill, their bill, were revealed.
  When it came time to discuss what their bill covers, again we saw 
confusion and inconsistency. Their bill provided the proper threshold, 
they said--a major rule should be a rule with an annual effect of $50 
million or more. On Monday, the first day of debate, that threshold 
was, however, lowered even further with the addition of significant, 
what are called significant rules, under the Regulatory Flexibility 
Act. This will add between 500 and 800 rules to the agency cost-benefit 
process.
 This was an incredible expansion of coverage. It could quadruple the 
number of rules that agencies have to put through detailed analysis.

  The very next day an amendment was passed, which I supported, to 
raise the threshold from the $50 million figure to $100 million. But 
the problem is that the amendments are inconsistent. It makes no sense 
to say that we have restricted the scope of the bill to a more 
reasonable threshold--$100 million overall economic impact on the 
country--when the threshold at the same time had just been lowered to 
include hundreds and hundreds and hundreds of more rules.
  I simply do not understand how my colleagues can think that agencies 
in a time of falling budgets and full-time employees--FTE's--will be 
able to effectively perform the duties that we give them. Yes, you have 
to remember that we in Congress passed the laws that require agency 
action. I add that some 80 percent of the regulations written are 
required in the laws that we sent over to the agencies to have the 
regulations written.
  Now those agencies will have to spend scarce resources on analyzing 
rules that do not have a significant impact on the Nation as a whole. 
This is simply a mistake. They cannot do something with nothing. We are 
cutting their budgets with fewer full-time employees and at same time 
loading them up with new policies that must be done, new analyses--that 
I favor but not the expansion that was done on the 

[[Page S 10091]]
floor--in the numbers of overall reviews that have to be made. We need 
to stick with the higher threshold, and that is it. That is manageable.
  Agencies need to be more sensitive to the burdens that Government 
places on small business. I also add that is what the Regulatory 
Flexibility Act is all about. Thinking that businesses somehow are 
being overregulated is not something new. We passed the Regulatory 
Flexibility Act I believe back in 1972 or 1973. It was supposed to 
address some of this problem.
  Let me repeat that agencies need to be more sensitive to the burdens 
that Government places on small business. That is what the Regulatory 
Flexibility Act is all about. But requiring agencies to go through 
lengthy analyses for nearly every rule that comes under that act is 
just too much. We will end up with a Government that spends more money 
and more time, and has less and less to show for it.
  If the proponents of Dole-Johnston are trying to make it much harder 
to issue regulations, regulations that we in Congress often require--
require as much as 80 percent of the time--then this is the way to do 
it. If they want to make it harder to issue rules that protect the 
health and safety of the American people, this is the way to do it.
  Let me just observe that two major supporters of the Dole-Johnston 
substitute, Senator Johnston and Senator Roth, did not support the 
expansion of the bill to cover regulatory flexibility rules. So I hope 
we can still address this problem in a reasonable way and maybe work 
out something on that before we come to a final vote on this 
legislation.
  Finally, let me mention the issue of sunshine. On Thursday, my 
amendment to the Dole-Johnston substitute to provide for sunshine in 
the OMB regulatory review process was accepted. I was very happy that 
amendment was accepted. It was not just passed by a vote. It was 
accepted unanimously. That was very good because it shows support for 
an important component of reasonable regulatory reform. This sunshine 
provision came from the bipartisan Governmental Affairs Committee bill, 
the bill sponsored by my good friend from Delaware, Senator Roth. The 
provision is also contained in the Glenn-Chafee bill.
  The problem is that for the last 2 months we have repeatedly urged 
those Senators involved in crafting the Dole-Johnston substitute to 
incorporate that sunshine provision. Despite our requests we were 
turned down at every turn. The latest rejection came last Wednesday, 
July 12, when we finally got a response to our June 28 list of 9 major 
and 23 minor issues with the Dole-Johnston bill. We were told then that 
we would have an answer. We do not have a full answer yet. But we did 
get a response to our June 28 list of 9 major and 23 minor issues with 
the Dole-Johnston bill. But then the next day, on Thursday, July 13, 
when confronted with the sunshine provision as an actual amendment, 
suddenly it was fine. Suddenly it was acceptable.
  I have a lot of respect for the intelligence and good faith and 
legislative abilities of the proponents of the Dole-Johnston 
substitute. I must admit I do not understand the thinking that goes 
into developing a legislative proposal of such great complexity and far 
reaching impact in a closed room dismissing compromise proposals out of 
hand and insisting that the bill should be passed, and then on the 
floor accepting some of the very proposals that were earlier rejected 
all the while maintaining that no changes are needed.
  I have not changed the stand I took, along with Senator Roth and our 
other colleagues in the Governmental Affairs Committee 3 months ago. I 
believe we had a tough but workable regulatory reform bill in S. 291. 
That bill provides the basis for the Glenn-Chafee substitute that I 
think should be supported now. So my position has not changed. Of 
course, there is always room for improvement in any bill. We modified 
Glenn-Chafee to reflect improvements that we have seen over the last 
several weeks. But on the basic provisions of the bill, my position is 
clear. It has been consistent.
  With the proponents of the Dole-Johnston substitute I think the story 
is different. I believe the truth is they are finally realizing that 
their bill is flawed, weighted with ill-thought-through provisions that 
will frustrate the very reform that they say they want to accomplish.
  I believe my colleague from Louisiana, Senator Johnston, has 
accomplished significant changes in S. 343 in the month or so that he 
has been working with the majority leader and the Senator from Utah, 
Senator Hatch. I also believe Senator Johnston deserves a great deal of 
credit for his commitment to regulatory reform, and for his tireless 
efforts to improve S. 343. He has been involved in regulatory reform 
for a number of years, and that has had pieces of legislation passed 
here on the Senate floor before. But if nothing else, his constant 
presence on the floor over the last week, and the detailed personal 
knowledge he has of the bill, shows his commitment and expertise. I 
certainly commend him for his effort. I believe the product, though, is 
still flawed, too unwieldy, too unworkable to provide the reform that 
we all believe is necessary and needed for the regulatory process. I 
think last week's debate highlighted a number of these differences.
  To bring the debate to the present, I would like to describe the 
major differences that I see between the Dole-Johnston bill, as 
modified this past Friday, and the Glenn-Chafee substitute.
  The Dole-Johnston substitute is based on the Judiciary Committee's 
bill that emerged from a divisive committee proceeding that was cut 
short before the bill could be fully debated. The Glenn-Chafee 
substitute is based on the Governmental Affairs Committee's unanimous 
bipartisan legislation. S. 291 which was sponsored by Senator Roth, the 
chairman of our committee, and fully debated in committee. Nothing was 
cut short there. It was fully debated before it was voted out with 
eight Republican votes and seven Democrat votes. It was a unanimous 
committee vote.
  An examination of the two committee reports shows the differences 
between those two bills. The Governmental Affairs report had a 
unanimous bipartisan discussion of a tough but workable approach to 
regulatory reform. The Judiciary report is divided and filled with 
divergent views, and they have never been reconciled yet.
  I believe that these two reports tell us why we are in the posture we 
are in today. Instead of choosing the path of bipartisan dialog and 
cooperation, the proponents of S. 343 chose to push ahead with what I 
view as an extreme bill. All the effort of Senator Johnston to moderate 
that bill--and again he has accomplished much--has not altered the 
fundamental nature of that bill. As I have said previously during this 
debate, the result is a bill tailored to special interests, and is a 
lawyer's dream.
 It does not, in my view, meet the goals of at the same time protecting 
health and safety or of having a more effective and efficient 
Government.

  Yes, we want agencies to have more thoughtful and less burdensome 
rules, but we also want agencies to be effective. The American public 
does not want the Federal Government to be more inefficient or to have 
important public protections delayed or bogged down in red tape, delay 
and courtroom argument. That is why Senator Chafee, myself and several 
others offered an alternative bill just before the last recess, and it 
was laid down here before the Senate last Friday as a substitute.
  Our substitute bill, S. 1001, is based on that same Governmental 
Affairs Committee bill, S. 291, that was reported out with full 
bipartisan support. It provides for tough but fair reform. It will 
require agencies to do cost-benefit analyses and risk assessments, but 
it will not tie up all their resources unnecessarily. It does not 
provide for special interest fixes, and it does not create a lawyer's 
dream. It provides for reasonable, fair, and tough reform.
  Since introducing the bill, we have incorporated additional changes 
to reflect agreed upon improvements arrived at during negotiations and 
debate on the underlying bill.
  This is a very complex matter. We do not necessarily claim we have 
the very last word on every detail, and we look forward to suggestions 
for improvement. We do think our approach is much more workable than 
the Dole-Johnston substitute and that our substitute provides the 
better approach for reform. 

[[Page S 10092]]

  Now, that is a little bit on the background, and that brings us to 
today. After a week of debate and amendments as well as the 
negotiations that preceded floor action, the Dole-Johnston substitute 
has been modified in a number of ways. There are, however, major issues 
that still distinguish the two bills and recommend support for the 
Glenn-Chafee substitute.
  In my mind, there are five major areas of difference remaining. First 
is the issue of how agencies should use regulatory analysis. We believe 
that agencies should be required to perform risk assessments and cost-
benefit analyses for all major rules. These analyses should inform 
agency decisionmaking --inform agency decisionmaking. They should not 
unilaterally control those decisions and impose least-cost solutions to 
every problem. Let us put some common sense into this process. We 
should not unilaterally control those decisions and impose least-cost 
solutions to every problem.
  Second is the question of look back. We believe that agencies should 
review existing rules, those that have been in effect, some for a long 
time, but their reviews should not be dictated by special interests or 
lead to wasteful litigation.
  Third is a matter of judicial review. The courts should be used to 
ensure that final agency rules are based on adequate analysis. 
Regulatory reform should not be a lawyer's dream with unending ways for 
special interests to bog down agencies in litigation.
  Fourth is the concern about special interests. Regulatory reform 
should provide a new, across-the-board process for Federal agency 
decisionmaking. It should not provide program fixes for special 
interests.
  Fifth is the implementation of the new reforms. In a nutshell, this 
is the issue of effective date. More broadly, however, it involves the 
question of whether we want to implement reforms in a way that improves 
Government decisions or whether we want to impose new requirements in 
order to frustrate decisions, create more delay, waste resources, 
introduce uncertainty and open up new avenues for litigation. I believe 
that implementation of the Glenn-Chafee substitute will improve 
decisionmaking and reduce burdens on the American public. The Dole-
Johnston substitute, on the other hand, has the potential to create 
problems, cost money, and harm the public interest.
  If we could resolve these five sets of issues, we could establish for 
the first time a governmentwide comprehensive regulatory reform 
process. This process would produce better, less burdensome and fewer 
regulations. It would also provide the protections for the public 
interest that the American people demand of their Government and that 
they have a right to expect from their Government.
  S. 343 does not follow these principles. Instead, it does special 
favors for a special few. In so doing, it creates a process that will 
delay important decisions, waste taxpayer dollars, enrich lawyers and 
lobbyists, undermine protections for health, safety, and the 
environment and further erode public confidence in government.
  Now, let me talk about each one of these five major issue areas. The 
first issue is the question of the use of regulatory analysis. We 
believe that agencies should perform risk assessment and cost-benefit 
analyses for all major rules. As I have already said, the threshold for 
a major rule should be a $100 million economic impact. If it includes 
more rules, as the Dole-Johnston substitute now does, it will fail its 
own cost-benefit test, and we will just waste Government resources 
instead of reforming Government. Once undertaken, the cost-benefit 
analyses and risk assessments should be used to inform agency 
decisionmaking.
  We all agree that regulatory decisions will be improved if Federal 
agencies routinely use consistent economic and scientific analysis to 
test their proposals. The question is, should that analysis control 
agency decisions, as under the Dole-Johnston approach, by requiring 
that the agency choose the least-cost solution to every problem--the 
least-cost solution to every problem.
  We had examples last week in the Chamber. If something costs $2 more 
but saves 200 lives, would it be worth that excess cost? Yes, it would. 
Right now, you could not do that, as this is worded, as I understand 
it. You have to have a least-cost solution.
  I simply do not believe we always want the agencies to take the 
cheapest path to implement our laws. What if that alternative that 
costs $2 extra saves 200 lives? Do we say pick the cheapest; do not 
look at the benefits of the alternatives before you? That is what S. 
343 does.
  What if the cheapest alternative imposes more costs on State and 
local governments? Or what if it imposes more costs on small business, 
or a specific region of our country, a certain section of our Nation? 
Do we want to stop agencies from considering such distributional 
effects?
  I think we have to let agencies use common sense. We keep saying that 
is what regulatory reform is all about. If so, then agencies should be 
able to choose the most cost-effective approach--the cost-effective 
approach we use in the Glenn-Chafee bill, looking not just at cost but 
also at the benefits. Remember, if for some reason we in Congress do 
not agree with the agency's solution, the congressional review 
provisions of both bills, S. 343 and S. 1001, allow us to rescind that 
rule by bringing it back to Congress for further action. That is 
something that has not been done in the past. We have that provision in 
both of these bills. So should we not create a process that allows for 
good decisions and a way to catch the bad ones rather than to create a 
process that ensures there probably will be bad decisions in the first 
place?
  The Glenn-Chafee substitute requires the analysis of costs and 
benefits. It requires agencies to certify whether benefits justify the 
costs and to explain if those benefits do not justify the costs.
 In other words, Glenn-Chafee uses cost-benefit analysis to improve 
decisions, but it does not give important decisions over to a 
mechanical economic analysis. Too much is at stake with Government 
decisions to simply rely on a least-cost approach to protecting the 
public interest.

  Let me point out here that the Dole-Johnston substitute also creates 
confusion with its Regulatory Flexibility Act decisional criteria. 
Section 604 is amended by adding a requirement that agencies not issue 
a rule unless it minimizes the economic impact ``to the maximum extent 
possible'' on small entities; that is, small businesses, State and 
local governments, and other small organizations.
  The least-cost-alternative test in this minimal impact test will 
probably conflict quite often. Least cost overall may often involve 
more than the lowest cost possible for small entities. As brought to 
the floor, the Dole-Johnston substitute simply did not address this 
inherent contradiction. As now amended, there is something of a fix. 
Agencies are to explain whenever the tests are in conflict but can go 
forward. My personal opinion is this is still not enough.
  To create a standard for governmentwide rulemaking that says, 
``Choose the alternative that is the absolute cheapest for small 
business and other small entities,'' is to me to turn away from common 
sense, away from traditional notions of administrative law and reasoned 
decisionmaking and to create a lengthy analytic process that, again, is 
geared to the cheapest solution, not the most cost-effective solution.
  The Regulatory Flexibility Act was designed to ensure that agencies 
consider more flexible and less burdensome alternatives for small 
entities. The Dole-Johnston substitute would turn that important 
purpose around and let it govern decisionmaking. I am all for looking 
out for the interest of small business and State and local governments, 
but American public interest is broader than that. Protecting public 
health and safety and the environment, for example, requires a broad 
view of what works best for the Nation as a whole, not just for some.
  That brings us back, once again, to the issue of balance that we are 
looking for.
  The second major issue is the question of lookback. We believe that 
agencies should review existing rules, but their reviews should not be 
dictated by special interests or lead to wasteful litigation. 
Regulatory reform is not just about improving new rules. It must also 
look back and help existing 

[[Page S 10093]]
rules, existing laws that currently govern so many activities in our 
country. So we all agree that agencies should use cost-benefit analysis 
and risk assessment to look back and review existing regulations to 
eliminate outdated, duplicative and unnecessary rules and to reform and 
streamline others.
  This process should be fair and open with plenty of opportunity for 
public comment, so that those who are interested in particular rules 
can make their concerns known to the agency. But this review should not 
be dictated by special interests, and I believe this is what would 
happen should the Dole-Johnston substitute become law. It would create 
a number of petition processes. That is an innocuous sounding phrase, 
``petition processes.'' It would create a number of petition processes 
that has the potential of gridlocking agencies and putting special 
interests and the courts, not the agencies and the executive branch, in 
charge of the review.
  The Dole-Johnston substitute uses a petition process to put rules on 
a schedule for review, and if the agency grants the petition, it has to 
review the rule in 3 years, which is a very short timeframe for such 
matters. If it fails to review the rule in that time, the rule 
automatically sunsets, goes out of existence. It just automatically 
sunsets. This process, it seems to me, puts the petitioner in the 
driver's seat, not the agency or the Congress who passed the law in the 
first place. It also creates a process more prone to just killing 
regulation than creating a thoughtful, balanced review of regulations.
  In addition to the review petitions, the Dole-Johnston substitute has 
several other petitions for ``any interested party" to challenge an 
agency on any rule, not just major rules. This is another example of 
the lawyer's-dream approach taken under this bill.
  People could petition for the issuance, amendment, or repeal of any 
rule. They could petition for the amendment or repeal of an 
interpretive rule or general statement of policy or guidance, and they 
could petition for the interpretation of the meaning of a rule, 
interpretive rule, general statement of policy or guidance. That is a 
mighty big list of things that could be petitioned under S. 343.
  Just to add to the confusion, the bill also has a separate section, 
section 629, for petitions for alternative compliance. Any person 
subject to a major rule can petition an agency to modify or waive the 
specific requirements of a major rule and to allow the person to 
demonstrate compliance through alternative means not permitted by the 
rule. In addition, it adds yet another petition process in section 634 
so that interested persons may petition an agency to conduct a 
scientific review of a risk assessment.
  Each agency decision on every one of these petitions, except that 
petition for alternative compliance, is judicially reviewable. What a 
dream for lawyers. At any step along the way, in other words, they can 
bring a suit for any one of the list of things I mentioned. All of 
these petitions and reviews add up to one of the worst parts of this 
bill. It is a formula for true gridlock. Agencies will have to spend 
enormous resources responding to each other and every petition. Then 
they can be dragged to court if they turn down a petition.
  So I do not feel this comes close to being real regulatory reform. 
This is regulatory and judicial gridlock, and this is the way to keep 
the agencies from doing their jobs and to keep lawyers happy and, I 
would add, extremely prosperous. This bill would make all the rhetoric 
about tort reform a big joke, except in this case judicial gridlock 
means the health and safety of the American people would be 
jeopardized.
  Mr. President, I think sometimes people think that a regulation is 
put out by the agencies with a little bit of effort and very few people 
involved. They do not understand why the delay and why they are so 
complex. We gave an example on the floor the other day.
  Just one regulation pursuant to the Clean Water Act that dealt with 
some of the metal fabricating areas, just one regulation covers, now 
that it is in place and it has been finalized, covers 123 feet of shelf 
space. That is a pile of documents from the well, right here in the 
Senate, to the ceiling, which is 42\1/2\ feet, we found out from the 
Capitol Architect. That is three piles of documents from the well to 
the ceiling. Three piles of documents to implement one regulation, and 
under the Clean Water Act there are hundreds of regulations like that.
  So we are not talking about something that is just a little thing--
well, we can just throw that over at the agencies and they can handle 
that OK, they can grind these out OK. That was one regulation written 
to a small part of what was addressed in the Clean Water Act.
  So these are not small things. When we talk about upping the cost for 
each regulation that would have to be written by some $500,000 to 
$800,000, I think is what the estimate was made last week on the floor, 
and we had testimony before the committee at one time that each 
regulation averages out, or can average out, around $700,000 per 
regulation to get it implemented.
  We begin to see that this is no small matter. Now, these petitions 
that we were addressing here--each agency decision on every one of 
these petitions, except that petition for alternative compliance I 
mentioned, is judicially reviewable. That is an absolute dream for the 
lawyers. All of these petitions and reviews add up to one of the worst 
parts of the bill--that is, it is a formula for true gridlock. Agencies 
are going to have to spend enormous resources responding to each 
petition. They can be dragged to court if they turn down a petition--
just a petition. It does not come close to being real regulatory 
reform. It is regulatory and judicial gridlock. It opens up to those 
who would thwart a particular piece of regulation that might be in the 
public good. They can thwart it and stop it dead in its tracks by 
keeping it in court. So this is a way to keep agencies from doing their 
jobs and to keep lawyers happy and prosperous. So all this tort reform 
becomes a big joke if this type of thing goes into effect.
  Now, while the Dole-Johnston substitute creates a recipe for 
gridlock, the Glenn-Chafee approach provides a workable process of 
review. Every 5 years, agencies will have to produce a 10-year schedule 
of rules to be reviewed. Opportunities for public comment will identify 
rules that the agency may not think is pressing. While there is no 
petition process or judicial review, our process allows Congress to add 
rules to the agency schedule. In other words, if we think their 
priority review of existing rules and regulations is not what it should 
be, Congress can add rules to that agency's schedule.
  Now, I must admit that I am not 100 percent happy with using the 
annual appropriations process, as we are proposing, to amend these 
schedules. I would be happy to consider alternatives. But the critical 
point is that we provide for amendments to the review schedules without 
bogging down agencies into the lengthy petition and judicial 
proceedings created under Dole-Johnston.
  I think that is the key point. We want review. We want a review that 
is sensitive to the complaints of people covered by the rules, but we 
do not want gridlock. We want Government to keep working so that we can 
have more effective and more efficient protections of public health and 
safety and the environment.
  The third major issue that distinguishes the Dole-Johnston substitute 
from the Glenn-Chafee substitute involves judicial review. The courts 
should be used to ensure that final agency rules are based on adequate 
analysis. Regulatory reform should not be a lawyer's dream, with 
unending ways for special interests to bog down agencies in litigation. 
We firmly believe in the courts' role in determining whether a rule is 
arbitrary or capricious. The Glenn-Chafee substitute authorizes 
judicial review of determinations of two things--whether a rule is 
major and therefore subject to the requirements of the legislation. 
Also, it allows review of the whole rulemaking record, which would 
include any cost-benefit and risk assessment documents.
  In other words, it allows review of the final rules at the final 
stage before that can be taken to court to see whether all of the 
requirements of cost-benefit and risk assessment have been provided. We 
should not, however, provide unnecessary, new avenues for technical or 
procedural challenges that 

[[Page S 10094]]
can be used solely as impediments by affected parties to stop a rule. 
Courts should not, for example, be asked to review the sufficiency of 
an agency's preliminary cost-benefit analysis, or the use of particular 
units of measurement for costs and benefits.
  While courts have a vital role to play, they should not become the 
arbiters of the adequacy of highly technical cost-benefit analysis or 
risk assessment, independent of the rule itself. Thus, Glenn-Chafee 
clearly states that ``if an analysis or assessment has been performed, 
the court shall not review to determine whether the analysis or 
assessment conformed to the particular requirements of this chapter, 
section 623(D).''
  I believe the way the Dole-Johnston substitute is currently drafted 
that lawyers and the courts will get into the details of a risk 
assessment or cost-benefit analysis. I think that is a mistake. From 
what I understand, there has been a great deal of discussion about this 
issue, and I believe many of us want the same result. The question is 
how to get there from here. Leaving the language as ambiguous as it is 
now is unacceptable. That is just an invitation to litigation.
  With all of the attention to the question of to what extent might the 
courts get into the details of cost-benefit analysis and risk 
assessment, we have not discussed enough the amendments that the Dole-
Johnston substitute makes to the Administrative Procedure Act. I am not 
a lawyer, but I know that with every statute we pass, the courts 
slowly, over the years, develop a body of case law that interprets each 
statute. The APA is no exception. It was enacted in 1946 and, to a 
great extent, it has been given more meaning by the courts in the 
intervening 50 years than Congress was able to squeeze into its 
relatively brief sections in 1946. While judicial interpretation of 
administrative procedures continues, I am not aware of any major 
criticisms of the APA. Certainly, the Administrative Conference has not 
proposed any major overhaul. But that is what will happen should the 
Dole-Johnston substitute be enacted into law. Its amendments to the 
APA, innocuous though they may seem to some, will usher in a whole new 
generation of lawsuits that will use the new legislative language to 
attack the case law that has developed around the 1946 statutory 
language.
  Adding more petition processes, requiring new details in rulemaking 
notices, adding the phrase ``substantial support in the Record'' to the 
traditional formulation of arbitrary and capricious, these will 
invariably be used by lawyers to go after rules not on substantive 
grounds but on these procedural grounds. This is not reform. This will 
recreate a litigation explosion that will give deeper gridlock than we 
could ever imagine.
  Let me just add that this is one of the reasons that I believe such 
important pending rules as the USDA meat inspection rules--the rules 
that are needed to protect the American people from foodborne 
illnesses, such as E. coli--should be exempted from Dole-Johnston. 
Independent of its cost-benefit analysis, all the supporting evidence, 
procedural steps, rulemaking notices, and more will all be open to 
challenge in the courts under these APA amendments.
  Again, this is not reform. This is a lawyer's dream and a potential 
nightmare for the American people. I am sure my colleagues, Senator 
Levin and Senator Biden, both excellent lawyers, will go into this 
issue. But it seems to me that these unneeded amendments to the APA 
alone are reason enough to oppose the Dole-Johnston substitute.
  The fourth major difference between the two bills is the concern 
about special interest. Regulatory reform should provide a new across-
the-board process for Federal agency decisionmaking. It should not 
provide program fixes for special interests.
  From the beginning, S. 343 has included a number of provisions that 
are not about Government-wide regulatory reform. Quite the contrary, 
they are about giving specific relief to specific interests or stalling 
particular programs. Frankly, I do not think these provisions have any 
place in a regulatory reform bill that should be meant to establish a 
fair process, fair and equal to all.
  Unlike S. 343, and unlike its revised alternative, the Dole-Johnston 
substitute, our bill, the Glenn-Chafee substitute, like its 
predecessor, Senator Roth's S. 291, has no such special fixes. Let me 
say that I sympathize with those who would like to fix particular 
problems. I know of examples where regulations go too far and where 
agencies go too far. But as testimony before our committee showed, 80 
percent of the rules are required by Congress. It is not up to the 
agencies. We require them in the legislation that we send over. So it 
is not just the regulatory process that needs fixing. We in Congress 
are also responsible for a lot of these problems. In other words, if we 
have a problem, we ought to look in the mirror a good part of the time.
  Let us focus on making the regulatory process better as a whole and 
not affix for special interest. Let me give some examples. This is not 
just idle talk. The original S. 343 tried to rewrite the Delaney 
clause. Now, I happen to think the Delaney clause needs some 
modification, but they went too far in rewriting the Delaney clause.
 They also shut down the EPA toxic release inventory, providing 
enforcement relief for companies and so on.

  Now, while I agree that some of these legitimate problems deserve our 
attention, this is not the place. A regulatory reform bill should 
address regulatory issues. It should not become a Christmas tree for 
lobbyists to hang solutions to whatever problems they may have.
  Over the last week, the Senate's resolution of amendments on several 
of these special fixes shows that they are divisive, unrelated to the 
basic process reforms proposed in the legislation, and simply an 
attempt to avoid going through the appropriate legislative channels.
  For example, the section that would delay an increased cost for 
environmental cleanups was stricken on the grounds that it was a 
specific program fix unrelated to the larger process reforms, and that 
Superfund reform is currently under consideration by the committee of 
jurisdiction.
  When it came time to consider a similar amendment to strike a section 
that would restrict EPA's toxic release inventory, the same arguments 
were rejected. Outside the scope of general regulatory reform--no 
matter. More properly considered by the committee of jurisdiction--no 
matter. Special interests want the TRI gutted--you got it.
  This is not how we should be reforming the regulatory process. We say 
we are creating a new, fair, and reasonable process. What we are really 
showing the American people is that if they are a big enough company, 
they use enough high-priced lawyers, you can fill the halls of power 
and get relief.
  It is unfortunately clear how a majority of the body weigh the 
community's right to know about the release of toxics into the 
environment against companies who apparently do not want companies 
around the plant to know what they are drinking and breathing.
  The irony for me is that the TRI is perhaps the most notable example 
of a rule that is relatively inexpensive and really not that 
burdensome. It is a so-called risk communication rule. Unlike a command 
and control rule that would prohibit the use of such toxic materials, 
TRI merely requires industry to inform the communities of the release 
of such chemicals.
  Now, do you know who cares about the TRI as much as anyone? It is 
local fire departments. People probably would not have thought of that, 
but they are the men and women who have to fight the local chemical 
plant fires and clean up chemical spills, and they want to know what 
they will face. They do not want a Bhopal, the tragedy that took place 
in India, to take place in their city or town.
  But no matter to the proponents of S. 343. Powerful business 
interests and their lawyers have sent the word around they do not want 
to have to comply with TRI. So it will be reworked, it will be revised, 
it will be restricted. I know what that means. I do not think the 
American public comes out on top in that particular consideration.
  These and other fixes are found in the Dole-Johnston substitute. They 
are not found in the Glenn-Chafee substitute. We stuck with the process 
of how the Government should go about regulatory reform. This is reason 
enough to support our bill. 

[[Page S 10095]]

  The fifth and final major difference between our two bills involves 
the implementation of the new reforms. In simple terms, this is a 
question of the statute's effective date. Last week, several questions 
arose about the effect of reform legislation on pending rules, on 
expected rules, and on avenues for increased litigation. I have already 
talked at some length about these in this statement.
  I believe if we are serious about changing the way Federal agencies 
make regulatory decisions, if we are serious about improving those 
decisions, about reducing burdens and improving commonsense solutions 
to pressing issues involving public health and safety and the 
environment, then we must have a sensible approach to implement the 
reforms.
  The Dole-Johnston substitute, as it now stands, reaches back and 
covers health and safety rules whose notice of proposed rulemaking 
occurred as early as April of this year. While that is supposed to let 
some rules off the hook, it also means that should that bill become 
law, rules in the pipeline between April and the date of enactment 
could be challenged in court and would have to go back to square one to 
comply with the many requirements of the new law.
  Now, I want to improve rulemaking. But I see no value in wasting 
resources already expended to promulgate a rule. If the rule is so bad, 
a court can overturn it under current law. There is no need to reach 
back and waste Government resources. The Dole-Johnston immediate 
effective date for all other rules simply adds to this bad picture. 
Challenges will flood the courts the very next day to go after rules 
developed under current law--current until the day Dole-Johnston S. 343 
is enacted.
  During our debate last week, proponents of the S. 343 substitute 
argued that because the Glenn-Chafee substitute does not have a broad 
exemption for health and safety rules, it is more restrictive than 
Dole-Johnston in its effect on pending rules. This argument is based on 
a misunderstanding of our bill.
  We apply our reform legislation to rules that are proposed 6 months 
after enactment. This delay gives agencies a reasonable amount of time 
to develop new procedures, bring new regulatory proposals up to the new 
standards before they are published as proposed rules. Again, Dole-
Johnston applies all requirements immediately.
  Once promulgated and coming under Glenn-Chafee, rules will face 
analytic requirements that are tough, but they are also fair and they 
are not unreasonable. Remember, we do not have the least-cost 
alternative. We do not have the least-cost alternative test or the 
minimal impact reg flex test of Dole-Johnston. We are not afraid to 
have important rules go through our process. They will face a tough 
test. But if they are needed, the rules will survive.
  What they will not face are the challenges that rules under Dole-
Johnston would face such as the new APA challenges that would be 
created for rulemaking procedures and substantial evidence 
requirements.
  The basic question is whether we want government to work better for 
the American people or whether we want to impose new requirements in 
order to frustrate decisions, create more delay, waste resources, 
introduce uncertainty, and open up new avenues for litigation.
  I believe that implementation of the Glenn-Chafee substitutes will 
improve decisionmaking and will reduce burdens on the American public.
  The Dole-Johnston substitute, on the other hand, will create 
problems, cost money--we do not know how much yet--and harm the public 
interest.
  In conclusion, I want to state again, I want regulatory reform. We 
have worked on this in the Governmental Affairs Committee for the last 
several years. It is not something that came up just recently.
  I believe that S. 343 does not provide the balanced regulatory reform 
we should have. I believe the Glenn-Chafee S. 1001, the substitute that 
we are proposing today, does that job.
  In the coming hours of debate, we will focus more closely on these 
two alternatives. I welcome suggestions for improvement to our bill. I 
am sure there are details that can be revised. I am also sure our bill 
provides a better approach. I urge our colleagues to support our 
substitute.
  Mr. President, I reiterate, once again, these areas: The Glenn-Chafee 
substitute focuses on truly major rules. Glenn-Chafee substitute 
requires cost-benefit analysis for all major rules. It does not take 
the least-cost approach that the Dole-Johnston bill does.
  The Glenn-Chafee substitute provides for review of current rule but 
with no automatic sunset. If we run out to a time period and the agency 
has not taken adequate action in the prescribed time period, then they 
must issue a notice of proposed rulemaking to repeal the rule. In other 
words, either approve it or put the forces in motion to repeal it, but 
allowing public comments on the rule.
  Also, the Glenn-Chafee substitute is not a lawyer's dream. We allow 
for judicial review of the determination of a major rule and whether 
the final rule is arbitrary and capricious in light of the whole 
rulemaking file.
  The Dole-Johnston bill provides procedures, petition, multitudinous 
places where suits can be filed to stop even the best of legislation.
  Also, the Glenn-Chafee substitute does not create brand-new petitions 
by private persons that will eat up agency resources and let special 
interests--not the agency or Congress--guide priorities.
  Lastly, Glenn-Chafee substitute has no special interest provision. We 
did not put a section in here that deals with things like the Delaney 
clause or toxic release inventory or things like that, that have a 
special interest to a special few.
  For all the reasons given this morning, Mr. President, I urge support 
of the Glenn-Chafee substitute which was laid down Friday evening 
before we left. I yield the floor.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Mr. JOHNSTON. Mr. President, the lines in this debate are becoming 
very, very clear. If you are for risk assessment, if you are for 
regulatory reform, you should be for the Dole-Johnston bill which is 
pending. If you are against that reform, you should be for the Glenn-
Chafee substitute because, Mr. President, the Glenn-Chafee substitute 
is sham reform. Make no mistake about it, it is totally consensual. 
There are no requirements to it. If the agency head wants to do it, it 
will be done.
  We are told that this is an outgrowth of the Roth bill which came out 
of committee unanimously, with both Democrats and Republicans 
supporting it, and so it did. And it had some teeth in it. All of those 
teeth have now been removed, so now it is totally consensual.
  We do not need a bill for consensual reform. We now have that. That 
is the problem. Right now there is a risk assessment rulemaking which 
applies to Federal agencies, but it is consensual and they do not do 
it--and that is the problem. We have been told there are all these 
lists of these rules, the top 10 list we have been talking about here 
on the floor, and that some of those were not Federal rules, they were 
State rules or whatever. But what really is the problem? The problem is 
that Federal agencies today are not doing the risk assessment, are not 
doing the cost-benefit analysis, are not using good science, and their 
regulations are a disaster.
  Who says so? EPA says so. In their own studies they have determined 
that the risks which they have rules against are risks perceived by the 
public rather than real risks. So anyone who says there is no problem 
with rulemaking, let them go on like they are doing, let them be 
consensual; we can trust these bureaucrats, they have done a great 
job--those who say that are not reading EPA's own documents.
  I say this is a consensual bill. It has no teeth. What is the basis 
of saying that? If you look at section 625 of the Glenn-Chafee 
substitute, it says that the agency head picks the rules to be reviewed 
``in the sole discretion of the head of the agency.'' Let me repeat 
that. According to the Glenn-Chafee substitute, the only rules to be 
reviewed are those which the agency head picks at the sole discretion 
of the agency head.
  If there was any chance of any court reversing that discretion, that 
also is totally removed by section 625, which says on judicial review 
that ``judicial 

[[Page S 10096]]
review of agency action taken pursuant to the requirements of this 
section shall be limited to review of compliance or noncompliance with 
the requirements of this section.''
  What does that mean? It means when you judicially review, you look at 
that phrase ``sole discretion of the head of the agency,'' and it 
disappears. There is no judicial review. There is sole discretion of 
the agency. There is nothing enforceable. So if Carol Browner, the head 
of the EPA, decides she wants to review a rule she can do so. And if 
she does not want to, guess what, Mr. President? Nobody can force her 
to do that. She can do that today. She can do that today. So why do we 
have all these pages of bills if we are going to adopt the Glenn-Chafee 
substitute? What is the point of all that, if it is all going to be 
consensual? If we think these bureaucrats are doing a great job?
  How about new rules? First of all, let me compare that with the Roth 
bill. Under the original Roth bill, which came out unanimously, all 
rules had to be reviewed by every agency head, every single rule had to 
be reviewed--every single major rule, $100 million, had to be reviewed. 
And at the end of 10 years they were sunsetted, boom, unless they were 
continued or modified, which, in turn, would have been a major Federal 
action or final agency action subject to judicial review.
  So under the original Roth bill, it had sharp teeth. In fact, I think 
its teeth were maybe even a little too sharp because they had to review 
all the rules. But the fact of the matter is, all those rules were 
there to be reviewed and they were there, there was judicial review of 
the agency action.
  So if you were an aggrieved party and there was one of these bad 
rules, either it was sunsetted or you had your right to come in and 
have your say. Under the Glenn-Chafee bill, all of those rules out 
there, which again EPA, in its own documents, says do not realistically 
reflect risk--some of them imposing hundreds of millions of dollars, 
hundreds of billions of dollars in some instances, costs on the 
taxpayers and on citizens--you cannot get to them. You have no right to 
be heard. You have no ability to review those rules.
  Oh, you can call it special interest. You can say special interests 
should not be able to come in and be heard on these rules. I can tell 
you who pays for those rules. It is the American taxpayer. It is the 
American citizen who pays for those rules.
  How about the new rules under the Glenn-Chafee amendment? We have a 
new provision here that says you do not have to do a cost-benefit 
analysis if a cost-benefit analysis is ``expressly or implicitly 
inconsistent with the statute''--``expressly or implicitly inconsistent 
with the statute.''
  And do not forget the agency head is able to interpret the statute 
and that judgment is reversed only if it is arbitrary and capricious. 
So a new rule comes along and the head of the agency says, ``I think 
this is not expressly inconsistent.'' There is nothing in this new 
statute that comes along that says you should not do a cost-benefit 
analysis. There is nothing here that prohibits it. There is no language 
on it. But I, agency head, think it is implicitly inconsistent with the 
statute.
  If there was ever a subjective rule, beauty in the eye of the 
beholder, unfettered discretion in an agency head, it is found in this 
word ``implicitly'' inconsistent. Implicitly inconsistent--Mr. 
President, it is a hole wide enough to drive three M-1 tanks side by 
side through and never touch the sides. It does not pass the straight-
face test. Really, ``implicitly inconsistent''? If that is not enough, 
they have taken out the rule about the benefits justifying the costs.
  I have told my colleagues, when we initially came up almost 2 years 
ago with the first risk assessment amendment--which passed 
overwhelmingly here in the Senate--of the example of the carbon 14 rule 
which EPA came up with which set these limits at 0.063 of the amount of 
carbon 14 contained in the body naturally, and they set that limit at 
that amount. Yet, it was going to cost $2.3 billion to comply with the 
rule.
  If there was ever an example of something that needed to be done--I 
mean you needed--they did not know what it was going to cost, and it 
was clearly not a risk. In other words, this was over 6,000 times the 
risk of dancing with your wife than was allowed in this carbon 14 
provision. But it was going to cost $2.3 billion to comply with it.
  Why should you not have that kind of information? Why should not that 
be there? Under this new language you do not have to certify that the 
benefits justify the cost. All you have to do is indicate whether the 
benefits justify the costs.
  In other words, rather than a rigorous test that says the benefits 
ought to justify the cost, all you have to do is sort of give the 
information whether it is or whether it is not. It does not matter in 
the bill.
  So, Mr. President, we have consensual legislation that does not make 
any requirements on anybody to do anything. And it is, as I say, sham 
reform.
  Now, if you are against risk assessment, if you are against cost-
benefit analysis, vote for this amendment because you can feel very 
confident that you are not going to change anything in the Federal 
Government, that it is going to be business as usual, that we are going 
to let the bureaucrats continue to waste the money of American 
taxpayers and American citizens as they have in the past by the 
hundreds of billions of dollars.
  Mr. President, there really are two bills being debated; two Dole-
Johnston bills. One is the bill that is before the Senate. The other is 
this fictitious bill that is misdescribed, mischaracterized, factually 
misquoted. And let me tell you what I mean.
  My friend from Ohio, Senator Glenn, just said that the Dole-Johnston 
bill requires the cheapest solution. He went on to say you could not 
get an alternative that cost a little more and saves 200 lives. He just 
said that, Mr. President.
  Mr. President, here is the decisional criterion. It says you adopt 
the ``least cost.'' Or ``if scientific, technical, or economic 
uncertainties are nonquantifiable benefits to health, safety, or the 
environment, identified by the agency in the rulemaking record make a 
more costly alternative that achieves the objectives of the statute 
appropriate and in the public interest and the agency head * * *'' 
explains that, then you may adopt the ``more costly alternative.''
  What are ``nonquantifiable benefits to health, safety, or the 
environment?'' Mr. President, the value of 200 lives is first of all a 
benefit defined as a benefit in the bill.
  Second, it explicitly states that you can have a more costly 
alternative; not only that, but ``scientific, technical, or economic 
uncertainties'' because the science is frequently uncertain.
  Mr. President, it escapes me how people can continue to say that we 
require the ``least cost alternative'' when the plain language of the 
bill states otherwise. I mean, why can people not understand the 
English language? Why can they not understand this, Mr. President? It 
is clear. And we have continually stated what that English language is.
  The fact of the matter is that the agency head under this has 
enormous discretion. And the agency head ought to have enormous 
discretion. But it requires this rigorous analysis so that if there is 
uncertain science the agency head has to make an explanation of those 
considerations. And if it is nonquantifiable benefits to health, 
safety, or the environment, you have to make an explanation of those 
things. It is designed to focus the logic of the thinking of the agency 
process to make them focus on what it is they are trying to achieve 
because in the past that has not been done. We do not know. With that 
carbon 14 regulation, we just did not know what the thinking was 
because they had ignored their own scientists, did not know what it was 
going to cost, and trotted out the regulation without any idea of what 
they were doing.
  Mr. President, let me turn to judicial review. The judicial review 
provisions of the Roth amendment have changed at least twice since 
Senator Roth reported that legislation. It was changed again this 
morning.
  Mr. President, the fact of the matter is that the Glenn-Chafee 
substitute has the faults which they accuse the Dole-Johnston bill of 
having--which we do not have and which they do have. May I explain? 

[[Page S 10097]]

  First of all, let me say what the problem is here. What we wanted to 
achieve all along was to have a review of the final agency action; that 
is, in most cases that will be the major rule. We wanted that to be 
approved, to be tested according to the standard of whether or not it 
is arbitrary and capricious or an abuse of discretion. Those are the 
old standards in the Administrative Procedure Act. We wanted those 
standards to govern the final agency action. We did not want the cost-
benefit analysis, or the risk assessment provisions to be independently 
reviewed so as to test them for the procedures, for the adequacy of the 
procedures.
  The reason we wanted the risk assessment and the cost-benefit 
analysis to be made part of the record is because only by making them 
part of the record and considering that can you understand whether the 
final agency action is arbitrary and capricious. In effect, it would be 
a rule of common sense.
  Let me tell my colleagues how it might work on three rules which may 
come up in the future. They are not proposed now. But it will give you 
a good indication of what is at stake here.
  One possible rule is electromagnetic fields, so-called EMF. EMF 
regulations could cost literally hundreds of billions of dollars 
because it could require the relocation of electric lines, high power 
tension lines all over this country. We have ongoing studies now, 
scientific studies, as to whether or not EMF causes cancer, and if so, 
at what levels, and to what extent. I might tell my colleagues that we 
do that under the Energy Committee. We have been funding those studies. 
I do not want to prejudge all of them. But the preliminary studies 
indicate that the level at which people receive EMF does not cause 
cancer. But again, that will await bringing in all of the science.
  Let us suppose you have an EMF rule here, and let us suppose that the 
scientists that they pick for peer review violates section 627 on 
conflict of interest. Let us say, for example, that all of the 
scientists, if it is EPA who is doing the rule, are from the electric 
power industry.
 They come up with a rule that says no problem; it does not cause 
cancer.

  Why, Mr. President, in that kind of situation, with the importance of 
that rule, the huge amount of expense involved, the centrality of the 
question of science, then I believe, if I were in the Court--and that 
is the record we had under this language--I would reverse it and send 
it back and say you have to get this science right, because the science 
is very important. On the other hand, if you had a rule where the 
science is fairly well understood and is not central to the issue, I 
think you could leave out a risk assessment altogether, and the final 
agency action might not be arbitrary and capricious.
  The point is that the risk assessment might or might not, depending 
on the circumstances, be grounds for reversal.
  Let us take another one: radon. We have had various radon legislation 
and some rules up on radon. Radon could be very expensive as well. And 
the scientific judgments there are very well known. We know radon 
causes cancer, but at what levels does it cause cancer, and in what 
sections of the country is it a risk, and what efforts ought to be made 
to deal with radon.
  If you picked scientists who are, say, with the home building 
industry and are not impartial, I can imagine a reversal on that 
ground. If you did not have a cost-benefit analysis on something like 
radon, which could cost a huge amount of money, I can imagine a 
reversal on that ground.
  Or suppose we have a regulation on second-hand tobacco smoke, to name 
one of our biggest areas now. Suppose you had a regulation on that, and 
all the scientists came from the tobacco companies. You mean to tell me 
you could not reverse on that ground? Because the science is so 
critical to that particular issue. On the other hand, if you were going 
to be setting a hunting season--I think, by the way, hunting seasons 
have been expressly exempted. In earlier versions of the act, they were 
not. But I can imagine that you might leave out the cost-benefit 
analysis altogether in setting a hunting season, and it would not 
affect the final agency action. So it is a rule of reason, and under 
this language:

       Failure to comply with this subchapter--

  This subchapter, of course, deals with risk assessment and cost-
benefit analysis.

     and subchapter III may be considered by the Court solely--

  s-o-l-e-l-y, which means solely.

     for the purpose of determining whether the final agency 
     action is arbitrary and capricious or an abuse of discretion.

  Mr. President, we are continually told by the opponents of risk 
assessment that ``solely'' does not mean solely. ``Solely'' means 
something else. ``Solely'' means solely part of the time and means 
something else some other part of the time.
  Mr. President, it is as clear as the noonday Sun on a cloudless day 
that ``solely'' means solely and only for the purpose of determining 
whether that final agency action is arbitrary and capricious, which is 
exactly what we want to achieve.
  Now, Mr. President, let us look at this new iteration of the Glenn-
Chafee judicial review language. It says:

       When an action for judicial review of an agency action is 
     instituted--

  In other words, when you get to appeal.

     any analysis or assessment of such agency action shall 
     constitute part of the whole administrative record of agency 
     action for the purpose of judicial review of the agency 
     action.

  ``For the purpose of judicial review of the agency action.''
  Now, what is the guiding rule of review of agency action? Under the 
Administrative Procedure Act, particularly section 706 of the 
Administrative Procedure Act, it provides for review of all agency 
action--all final agency action.
  So I assume that section 706 is the guiding rule for appellate 
review. I tell my friend from Ohio that I am going to ask him some 
questions about it if he is willing to answer when I finish these 
remarks because I would like to know what in his opinion the standard 
of that review is.
  When you say, ``judicial review of the agency action,'' what is the 
standard? Now, if it is section 706, section 706 has two pertinent 
provisions. One is the same standard we have here, that is, arbitrary 
and capricious or an abuse of discretion. But it also has subsection 
(d) that says ``without observance of procedure required by law.''
  Now, if I am correct that it is section 706 under which this is 
reviewed, then under the Glenn-Chafee amendment by that last phrase you 
can review both the arbitrary and capricious nature of the final agency 
action, the abuse of discretion of the final agency action, and you can 
review with the phrase ``without observance of procedure required by 
law.''
  Now, there is another provision, though, of the Glenn-Chafee judicial 
review provision upon which they rely which says this:

       If an analysis or assessment has been performed, the Court 
     shall not review to determine whether the analysis or 
     assessment conformed to the particular requirements of this 
     chapter.

  Now, the operative phrase here, Mr. President, is ``particular.'' One 
of the oldest rules of statutory construction is that when two 
provisions are in pari materia; that is, when they are on the same 
subject and particularly when they are in the same section, you read 
those two together so as to give life to both of them, so that you do 
not nullify one at the expense of the other.
  Now, I will tell you what this means to me. ``Shall not review to 
determine whether the analysis or the assessment conformed to the 
particular requirements of this chapter.'' The word ``particular'' must 
have some meaning, and I believe that meaning is to institute a de 
minimis test; that is to say, you do not reverse for procedural errors 
of small degree, but you may reduce for procedural errors of greater 
degree.
  If that is the not the meaning, then what is the meaning of the word 
``particular''? They could have said conform to the requirements of 
this subchapter as opposed to the particular requirements of this 
subchapter. And if, Mr. President, I am wrong on that, then you still 
have a review under the other provisions of section 706, which leads 
you to the same conclusion we have here.
  So either the Glenn-Chafee amendment goes beyond what our amendment 
goes to by at least implicitly allowing a procedural review, or it at 

[[Page S 10098]]
least provides for a review of the final agency action and to the same 
extent that ours does.
  So now, Mr. President, if the distinguished Senator from Ohio would 
yield for a few questions, if I may ask him, when you say ``purpose of 
judicial review of the agency action,'' by what rule is that? Is that 
not under section 706 of the APA and, if not, then under what standard?
  Mr. GLENN. I think we are referring to--you are talking about section 
706?
  Mr. JOHNSTON. In your amendment, this is section 623(e), providing 
for judicial review, the last sentence of which says, ``When an action 
for judicial review of an agency action is instituted, any analysis or 
assessment for such agency action shall constitute part of the whole 
administrative record of agency action for the purpose of judicial 
review of the agency action.''
  My question is, Is that review not under section 706 of the 
Administrative Procedure Act, and if that is not the applicable 
section, what is the applicable section?
  (Mr. KYL assumed the Chair.)
  Mr. GLENN. I reply to my colleague from Louisiana, we maintain the 
current status under the APA, the standard being arbitrary and 
capricious, which has been the case for a long time.
  Mr. JOHNSTON. That is section 706.
  Mr. GLENN. Section 706. It is my understanding, under Dole-Johnston, 
it expands 706 for scope of review. It allows a court to set aside an 
agency action if findings are ``without substantial support.'' That is 
a new and higher standard of review than APA has acknowledged in the 
past.
  Mr. JOHNSTON. That is a different section. For the purpose of 
compliance with this subchapter, subchapter II, and subchapter III, 
that is risk assessment and cost-benefit analysis, that review shall be 
solely on the basis of what is arbitrary and capricious or an abuse of 
discretion.
  Mr. GLENN. Then we disagree on the meaning of----
  Mr. JOHNSTON. ``Solely''?
  Mr. GLENN. Arbitrary and capricious.
  Mr. JOHNSTON. That language is excerpted--it is the same standard 
that you have. That is section 706.
  Mr. GLENN. No, it is my understanding Dole-Johnston goes beyond that 
and establishes ``without substantial support'' as a new and higher 
standard of review, where we stick with the Administrative Procedure 
Act that has been in effect, acknowledged under law, a whole body of 
law developed under that, and we stick with that so there can be no 
misunderstanding of it. Dole-Johnston goes well beyond that and 
establishes a whole new procedure.
  Mr. JOHNSTON. I say to my friend, that is a different question. That 
is a different section. We are talking about the review of cost-benefit 
analysis and risk assessment which, under our language, specifically 
states that it is solely for the purpose of determining whether the 
final agency action is arbitrary and capricious.
  My question to you is, under your language which says--you allow risk 
assessments--``analysis or assessment shall constitute part of the 
whole administrative record for the purpose of judicial review of the 
agency action,'' is that review not under section 706?
  Mr. GLENN. The difference here being, what we provide is that final 
review, just before the rule or reg would go into effect, then it would 
be challengeable in the court. There would be judicial review at that 
point. They could consider everything that has happened up to that 
point. It would not be judicially reviewable at all the multitudinous 
steps along the way that would still be permitted under Dole-Johnston.
  Mr. JOHNSTON. I do not even know what you are talking about, 
multitudinous. Name one place.
  Mr. GLENN. I will get the detail on that a little later on today.
  Mr. JOHNSTON. I suggest to my friend from Ohio that there is only one 
review, explicitly only one review, under our proposal, and that is 
final agency action.
  Mr. GLENN. Will the Senator yield so I can read some of the areas----
  Mr. JOHNSTON. I want to clear this up, because we say specifically 
that there is--all right, let me read this, from section 625 of Dole-
Johnston:

       Compliance or noncompliance by an agency with the 
     provisions of this subchapter and subchapter III shall be 
     subject to judicial review only in accordance with this 
     section.
       (b) except as provided in subsection (e) and subject to 
     subchapter II each court with jurisdiction under a statute to 
     review final agency action to which this title applies has 
     jurisdiction to review any claims of noncompliance with this 
     subchapter and subchapter III. . . .

  And then next:

       Except as provided in subsection (e), no claims of 
     noncompliance with this chapter or subchapter III shall be 
     reviewed separate or apart from judicial review of the final 
     agency action to which they relate.

  And then we state here that that is a review of final agency action.
  It is as clear as it can be. Now tell me where else you were going to 
be able to review this? It says ``compliance or noncompliance shall be 
subject to judicial review only in accordance with this section,'' and 
there is the section. It is final agency action. Now is that not clear, 
I ask my friend?
  Mr. GLENN. No, I do not think it is. EPA has given a list of things 
where they feel this could be challenged, where litigation could come 
out of this. I was asked a moment ago, I believe the gist of it was, 
what possible litigation could come out of this?
  Mr. JOHNSTON. Right.
  Mr. GLENN. We have here--I do not know whether it is necessary to 
read all of these or not--but there are 144 items that could be 
litigated under S. 343 as counsel to EPA interprets this. Let me go 
through some of these.
  No. 1: Did the agency sufficiently explain the need for and 
objectives of a rule?
  No. 2----
  Mr. JOHNSTON. On that first one----
  Mr. GLENN. Is the Senator going to let me read these?
  Mr. JOHNSTON. Not 144.
  Mr. GLENN. I am not the counsel for EPA. I am saying this is their 
interpretation of exactly what you are referring to here.
  Mr. JOHNSTON. But you said you would have a separate review, even 
under what counsel for EPA says, that would come only at the final 
review and solely for the purpose of determining whether or not the 
final agency action was arbitrary and capricious; is that not correct? 
It is clear.
  Mr. GLENN. We stick with the arbitrary-and-capricious rule. We do not 
expand that as Dole-Johnston does.
  Mr. JOHNSTON. There is the standard right there. It is plain English. 
It is as plain as it can be. It is ``arbitrary and capricious or abuse 
of discretion,'' that is the sole and only basis for review of the 
cost-benefit analysis or of the risk assessment. That is it. Look, read 
the language.
  Mr. GLENN. I say to my friend from Louisiana, there is a difference 
of opinion here on what is meant by the language. I know we have had a 
number of discussions back and forth, and with the Senator from 
Louisiana and Senator Levin on the Senate floor.
  The interpretation counsel at EPA is giving on this is the one I was 
about to read, and there are 144 different questions where they feel 
litigation can come up under this.
  Mr. JOHNSTON. Those may be requirements of risk assessment or cost-
benefit analysis which, to the extent they are relevant, can be used to 
challenge the final agency action. Maybe so. But those are only 
arguments you make. The first one there is notice. Do you really think 
you are going to throw out a final agency action as being arbitrary and 
capricious because they did not give notice?
  Mr. GLENN. This was not notice. I read this. ``Did agencies 
sufficiently explain the need for and objectives of a rule?''
  They feel, under S. 343, this language under your proposal could be 
challenged in litigation.
  Mr. JOHNSTON. You can challenge anything.
  Mr. GLENN. No, not under Glenn-Chafee, you cannot challenge anything. 
We have the final rule that can be challengeable, or whether it is a 
major rule or not. We specify that.
  Mr. JOHNSTON. If you ever got a cost-benefit analysis done under 
Glenn-Chafee, all that is consensual. If you want to do it, if you feel 
like it, if it feels good, do it. Otherwise, do not do it because you 
do not have to. It is business as usual. Am I not right that it is all 
consensual on the lookback process under Glenn-Chafee; is that correct?

[[Page S 10099]]

  Mr. GLENN. No, that is not correct. I will tell you the difference. 
What we provided in both pieces of legislation is the right for 
Congress to get in the act and review anything that we want to that 
could come back to Congress. So if there is any question about it, it 
comes back to Congress. That is provided in both pieces of legislation.
  Mr. JOHNSTON. Oh, well, sure. Congress can always pass a law. The 
Constitution provides that. This bill does not provide that. But save 
Congress enacting a law, it is consensual, is it not?
  Mr. GLENN. I say to my friend that we provide specifically for a 
procedure for any rule to come back to Congress for further 
consideration. And in both bills, we give a time period that is 
required for Congress to review whatever it is that was brought back. 
One is 60 days, the other is 45 days--not a huge difference. So it 
seems to me that protects whatever may be required or whatever may come 
up over there, as far as whether something has had adequate review or 
not before it was put into a rule.
  Mr. JOHNSTON. Well, let us say that the director of EPA or another 
agency looks back and says, ``We have done a heck of a good job, we 
have great bureaucrats in this agency, and we do not think anything 
needs to be reviewed.'' So the slate is clean, it is a tabula rasa, it 
is a devoid of any rules to be reviewed. I am an aggrieved party and 
what is my remedy? To come to Congress and ask them to pass an act? 
That is it, is it not?
  Mr. GLENN. I will reply. The standard of review is arbitrary and 
capricious under Dole-Johnston, but that issue itself is what can be 
reviewed. Now, these 144 items here--
  I ask unanimous consent that these 144 items be printed in the 
Record.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

  One Hundred Forty-Four Items To Litigate Under S. 343 (Version 783)

       1. Did agency sufficiently explain the need for and 
     objectives of a rule?
       2. Did agency identify and sufficiently discuss all 
     significant legal and factual issues presented by a rule?
       3. Did agency identify and adequately describe all 
     reasonable alternatives to a rule?
       4. Did agency adequately explain why all reasonable 
     alternatives to rule were rejected?
       5. Did agency sufficiently explain whether a rule is 
     expressly required by the text of a statute?
       6. Did agency identify and sufficiently explain all the 
     statutory interpretations upon which a rule is based?
       7. Did agency identify all alternative statutory 
     interpretations and sufficiently explain why all such 
     alternatives were rejected?
       8. Did agency identify each factual conclusion upon which a 
     rule is based and adequately explain how each such conclusion 
     is substantially supported in the rulemaking file?
       9. Did agency respond to rulemaking petition under 
     Sec. 553(l) within 18 months?
       10. Did agency appropriately deny a rulemaking petition 
     under Sec. 553(l)?
       11. Does a rule cost more than $50 million?
       12. Is rule closely related to other rules that aggregate 
     into major rule?
       13. Did initial cost-benefit analysis contain a sufficient 
     description of the benefits of a proposed rule?
       14. Did initial cost-benefit analysis include a sufficient 
     description of how the benefits would be achieved?
       15. Did initial cost-benefit analysis contain a sufficient 
     description of the persons or classes of persons likely to 
     receive such benefits?
       16. Did initial cost-benefit analysis contain a sufficient 
     description of the costs of a proposed rule?
       17. Did initial cost-benefit analysis include a sufficient 
     description of how the costs would result from the rule?
       18. Did initial cost-benefit analysis contain a sufficient 
     description of the persons or classes of persons likely to 
     bear such costs?
       19. Did initial cost-benefit analysis adequately identify 
     alternatives that require no government action?
       20. Did initial cost-benefit analysis adequately assess 
     costs/benefits of no-action alternatives?
       21. Did initial cost-benefit analysis adequately identify 
     alternatives that accommodate differences among geographic 
     regions?
       22. Did initial cost-benefit analysis adequately assess 
     costs/benefits of geographic alternatives?
       23. Did initial cost-benefit analysis adequately identify 
     alternatives that accommodate different compliance resources?
       24. Did initial cost-benefit analysis adequately assess 
     costs/benefits of different compliance resource alternatives?
       25. Did initial cost-benefit analysis adequately identify 
     performance-based, market-based alternatives, or other 
     flexible alternatives?
       26. Did initial cost-benefit analysis adequately assess 
     costs/benefits of performance-based, market-based, or 
     flexible alternatives?
       27. Did initial cost-benefit analysis adequately assess 
     costs-benefits of all other reasonable alternatives?
       28. Did agency in proposed rule adequately verify quality, 
     reliability, and relevance of science?
       29. Did final cost-benefit analysis contain a sufficient 
     description of the benefits of a proposed rule?
       30. Did final cost-benefit analysis include a sufficient 
     description of how the benefits would be achieved?
       31. Did final cost-benefit analysis contain a sufficient 
     description of the persons or classes of persons likely to 
     receive such benefits?
       32. Did final cost-benefit analysis contain a sufficient 
     description of the costs of a proposed rule?
       33. Did final cost-benefit analysis include a sufficient 
     description of how the costs would result from the rule?
       34. Did final cost-benefit analysis contain a sufficient 
     description of the persons or classes of persons likely to 
     bear such costs?
       35. Did final cost-benefit analysis adequately assess 
     costs/benefits of performance-based, market-based, or 
     flexible alternatives?
       36. Did final cost-benefit analysis adequately assess 
     costs/benefits of all other alternatives?
       37. Did agency adequately consider benefits and costs 
     incurred by all affected persons or classes of persons, 
     including specially affected subgroups?
       38. Did agency adequately determine whether benefits of 
     rule justify costs?
       39. Did agency adequately determine whether the rule 
     employs flexible alternatives to the extent practicable?
       40. Did agency adequately determine whether rule adopts the 
     least cost alternative of the reasonable alternatives?
       41. Did agency correctly identify and sufficiently describe 
     scientific, technical, or economic uncertainties or 
     nonquantifiable benefits that make a more costly alternative 
     appropriate and in the public interest?
       42. Did agency sufficiently describe why such alternatives 
     are appropriate and in the public interest?
       43. Did agency sufficiently explain why any such 
     alternative is the least cost alternative of the reasonable 
     alternatives necessary to take into account uncertainties or 
     nonquantifiable benefits?
       44. Did agency correctly determine that rule is likely to 
     significantly reduce risks addressed?
       45. If uncertainties preclude such a finding, did agency 
     adequately justify the issuance of the rule?
       46. Did agency correctly determine that a rule could not 
     satisfy the cost-benefit decisional criterion applying the 
     statutory
      requirements upon which the rule is based?
       47. Did agency quantify costs and benefits to extent 
     feasible?
       48. Did quantification adequately specify ranges of 
     predictions?
       49. Did quantification adequately explain margins of error?
       50. Did quantification adequately address the uncertainties 
     and variabilities in the estimates used?
       51. Did agency adequately describe nature and extent of 
     nonquantifiable costs and benefits?
       52. Did agency clearly articulate relationship of benefits 
     to costs?
       53. Is understanding of industry-by-industry effects of 
     central importance to a rulemaking?
       54. If so, were costs and benefits broken down 
     appropriately on industry-by-industry basis?
       55. Did agency correctly determine that conducting a cost-
     benefit analysis would have been impracticable due to an 
     emergency or threat likely to result in significant harm to 
     the public or natural resources?
       56. In developing a preliminary schedule for regulatory 
     review, did the agency appropriately consider whether a rule 
     is unnecessary and may be repealed?
       57. In developing a preliminary schedule for regulatory 
     review, did the agency appropriately consider whether a rule 
     would meet the decisional criteria of Sec. 624?
       58. In developing a preliminary schedule for regulatory 
     review, did the agency appropriately consider whether the 
     rule could be amended to substantially decrease costs, 
     increase benefits, or provide greater flexibility for 
     regulatory entities?
       59. In developing a final schedule for regulatory review, 
     did the agency appropriately consider whether a rule is 
     unnecessary and may be repealed?
       60. In developing a final schedule for regulatory review, 
     did the agency appropriately consider whether a rule would 
     meet the decisional criteria of Sec. 624?
       61. In developing a final schedule for regulatory review, 
     did the agency appropriately consider whether the rule could 
     be amended to substantially decrease costs, increase 
     benefits, or provide greater flexibility for regulated 
     entities?
       62. In developing a final schedule for regulatory review, 
     did the agency appropriately consider the importance of each 
     rule relative to other rules being reviewed under the 
     section?
       63. In developing a final schedule for regulatory review, 
     did the agency appropriately consider the resources expected 
     to be available to the agency for the review?
     
[[Page S 10100]]

       64. Did petition establish substantial likelihood that 
     future impact of rule would be equivalent of major rule?
       65. Did petition on its face establish substantial 
     likelihood that head of agency would not be able to make the 
     findings required by Sec. 624?
       66. Did agency correctly conclude that petition did not 
     show substantial likelihood that guidance would have effect 
     of a major rule?
       67. Did agency correctly conclude that petition did not 
     show substantial likelihood that agency would not be able to 
     find that guidance document meets criteria of Sec. 624?
       68. Did agency complete rulemaking within two years of 
     determination to amend a rule pursuant to Sec. 623?
       69. Did agency develop adequate regulatory flexibility 
     analysis?
       70. Is a cleanup a ``major environmental activity'' (will 
     it exceed $10 million in costs, expenses, and damages)?
       71. Did agency correctly conclude that construction had 
     commenced on a significant portion of the cleanup activity?
       72. Did the agency correctly conclude that it would have 
     been more cost-effective to complete cleanup construction 
     than perform a cost-benefit analysis and risk assessment?
       73. Did agency correctly conclude that cleanup delays 
     associated with development of cost-benefit analysis and risk 
     assessment would have resulted in actual and immediate risk 
     to human health or welfare?
       74. Did agency prepare risk assessment for major 
     environmental management activity in accordance with risk 
     assessment provisions of S. 343?
       75. Did agency prepare appropriate cost-benefit analysis 
     for major environmental management activity in accordance 
     with cost-benefit provisions of S. 343?
       76. Did agency appropriately identify the reasonably 
     anticipated probable future use of land and its surroundings 
     affected by a major environmental management activity?
       77. Did agency appropriately incorporate such reasonably 
     anticipated probable future use of land and its surroundings 
     in conducting a cost-benefit analysis of a major 
     environmental management activity?
       78. Did agency appropriately incorporate such reasonably 
     anticipated probable future use of land and its surroundings 
     in conducting a risk assessment of a major environmental 
     management activity?
       79. For actions pending or proposed within one year of 
     enactment of bill, did agency use an appropriate alternative 
     analysis to assess the costs and benefits and risks 
     associated with a major environmental management activity?
       80. Did agency adequately determine whether benefits of 
     major environmental management activity justify costs?
       81. Did agency adequately determine whether the activity 
     employs flexible alternatives to the extent practicable?
       82. Did agency adequately determine whether the activity 
     adopts the least cost alternative of the reasonable 
     alternatives?
       83. Did agency correctly identify and sufficiently describe 
     scientific, technical, or economic uncertainties or 
     nonquantifiable benefits that make a more costly alternative 
     cleanup activity appropriate and in the public interest?
       84. Did agency sufficiently describe why such alternatives 
     are appropriate and in the public interest?
       85. Did agency sufficiently explain why any such 
     alternative is the least cost alternative of the reasonable 
     alternatives
      necessary to take into account uncertainties or 
     nonquantifiable benefits?
       86. Did agency correctly determine that cleanup activity is 
     likely to significantly reduce risks addressed?
       87. If uncertainties preclude such a finding, did agency 
     adequately justify the cleanup activity?
       88. Did agency correctly determine that a cleanup activity 
     could not satisfy the cost-benefit decisional criterion 
     applying the statutory requirements upon which the activity 
     is based?
       89. Did the agency correctly conclude that a risk 
     assessment would not likely have an effect on the U.S. 
     economy equivalent greater than $50 million/year?
       90. Did the agency correctly conclude that a risk 
     assessment for the issuance or modification of a permit meets 
     the requirements of Sec. 633.
       91. Did the agency correctly conclude that conducting a 
     risk assessment would have been impracticable due to an 
     emergency or health and safety threat likely to result in 
     significant harm to the public or natural resources?
       92. Is risk assessment related to rule authorizing a 
     product's introduction into commerce?
       93. Is risk assessment an exempt screening analysis?
       94. Is screening analysis used as the basis for imposing 
     restriction on previously authorized any activities?
       95. Is screening analysis used to as the basis for a formal 
     determination of significant risk from a substance or 
     activity?
       96. Does agency conduct risk assessments in manner that 
     promotes informed public input into decision-making process?
       97. Does the agency maintain appropriate distinction 
     between risk assessment and risk management?
       98. Did agency apply appropriate level of detail and rigor 
     to risk assessment?
       99. Did agency develop an appropriate iterative process for 
     risk assessments?
       100. Did agency correctly determine that additional data 
     would significantly change the estimate of risk and the 
     resulting agency action?
       101. Is risk assessment based on best reasonably available 
     scientific data and understanding?
       102. Did agency appropriately analyze the quality and 
     relevance of data used in risk assessment?
       103. Did agency appropriately describe the analysis of the 
     quality and relevance of the data used?
       104. Did agency appropriately consider whether data were 
     appropriately peer-reviewed or developed in accordance with 
     good laboratory practices?
       105. Does risk assessment adequately discuss conflicts 
     among scientific data?
       106. Does risk assessment include adequate discussion of 
     likelihood of alternative interpretations of data?
       107. Does risk assessment appropriately emphasize 
     postulates
      representing the most reasonable inferences from supporting 
     scientific data?
       108. Does risk assessment appropriately emphasize data 
     indicating greatest scientific basis of support for resulting 
     harm to affected individuals?
       109. Does agency appropriately assess whether foreign 
     determinations of health effects values should be utilized in 
     agency decisions?
       110. Does risk assessment use site-specific information to 
     maximum extent practicable?
       111. Does risk assessment inappropriately rely on policy 
     judgments or default assumptions?
       112. Does risk assessment appropriately identify policy 
     judgments used?
       113. Does risk assessment appropriately describe scientific 
     or policy judgments used?
       114. Does risk assessment adequately explain the extent 
     policy judgments have been validated by data?
       115. Does risk assessment adequately explain the basis for 
     choosing particular policy judgments?
       116. Does risk assessment adequately identify and explain 
     all reasonable alternative policy judgments that were not 
     selected by agency for use in risk assessment?
       117. Does risk assessment adequately explain sensitivity of 
     conclusions to such alternative policy judgments?
       118. Does risk assessment adequately explain rationale for 
     not using such alternative policy judgments?
       119. Does risk assessment inappropriately combine or 
     compound multiple policy judgments?
       120. Does risk characterization appropriately describe 
     hazard of concern?
       121. Does risk characterization appropriately describe 
     populations or natural resources at risk?
       122. Does risk characterization appropriately explain the 
     exposure scenarios used in risk assessment?
       123. Does risk characterization appropriately estimate 
     population at risk?
       124. Does risk characterization appropriately describe 
     likelihood of different exposure scenarios?
       125. Does risk characterization appropriately describe the 
     nature and severity of harm that could plausibly occur?
       126. Does risk characterization appropriately identify 
     major uncertainties in each component of risk assessment?
       127. Does risk characterization appropriately address the 
     influence of each uncertainty on the results of the risk 
     assessment?
       128. Does risk assessment conclusion appropriately express 
     overall estimate of risk as a range of probability 
     distribution reflecting variabilities, uncertainties, and 
     data gaps in analysis?
       129. Does conclusion appropriately provide range and 
     distribution of risks and corresponding exposure scenarios?
       130. Does conclusion appropriately identify reasonably 
     expected
      risk to general population?
       131. Does conclusion appropriately identify risk to more 
     highly exposed or sensitive subpopulations?
       132. Does conclusion appropriately describe qualitative 
     factors influencing range of possible risks?
       133. Do scientific data and understanding permit relevant 
     comparisons of risk?
       134. If so, did agency appropriately place nature and 
     magnitude of risks to human health, safety, and the 
     environment in context?
       135. Did agency appropriately describe substitution risks?
       136. In reviewing petition for review of free-standing risk 
     assessment, did agency correctly conclude that risk 
     assessment or entry was consistent with risk assessment and 
     characterization principles in S. 343?
       137. In reviewing petition for review of risk assessment, 
     did agency correctly conclude that risk assessment does not 
     fail to take into account material new scientific 
     information?
       138. In reviewing petition for review of risk assessment, 
     did agency correctly conclude that risk assessment would not 
     have contained significantly different results if properly 
     conducted pursuant to provisions of S. 343?
       139. In reviewing petition for review of risk assessment, 
     did agency correctly conclude that revised risk assessment 
     would not provide basis for reevaluating an agency 
     determination of risk that currently has an effect on the 
     U.S. economy of $50 million/year?
       140. Does consent decree imposing rulemaking obligations 
     divest agency of disrection to respond to changing 
     circumstances, make policy or managerial changes, or protect 
     rights of third parties?
     
[[Page S 10101]]

       141. Did the agency appropriately apply a rule of reason in 
     determining whether to add or delete a chemical from the 
     Toxics Release Inventory?
       142. In determining whether to add or delete a chemical 
     from TRI, did the agency appropriately consider the levels of 
     the chemical in the environment that might result from 
     reasonably anticipated releases?
       143. In an enforcement proceeding, did a defendant 
     reasonably rely on and comply with a rule, regulation, 
     adjudication, directive or order?
       144. Was such reliance and compliance incompatible, 
     contradictory, or otherwise irreconcilable with the rule, 
     regulation or directive for which enforcement is sought?

  Mr. GLENN. Mr. President, this is a list of 144 bases upon which a 
rule can be challenged using the arbitrary and capricious standard that 
you are talking about.
  Mr. JOHNSTON. Well----
  Mr. GLENN. These can still be challenged.
  Mr. JOHNSTON. Let me ask my friend to answer this question: EPA does 
not do anything. It puts no rule up for review. What is your remedy if 
you are an aggrieved party, if you are outraged citizens, if you are 
millions of American citizens, what is your remedy? To come to 
Congress?
  Mr. GLENN. Yes, that is the ultimate protection, Congress, where 80 
percent of these things start to begin with, where the requirements are 
put in.
  Mr. JOHNSTON. I tell my friend that the American public has come to 
Congress. That is what we are doing here today. That is what this is 
all about. EPA has reviewed its own rules and says they are not based 
on real risks, they are based on public perceptions of risk and we need 
to do something about it. Everybody says let us do something about it. 
And now that is where we are.
  There was a 1987 study called ``Unfinished Business'' where EPA 
systematically ranked the seriousness of the various risks that it was 
addressing or could address. The report found that there was little 
correlation between the risk that the EPA staff judged as most 
threatening and EPA's program priorities. Instead, EPA found a 
correlation between EPA's priorities and public opinion on the 
seriousness of the various environmental threats. ``Overall, EPA's 
priorities appear more closely aligned with public opinion than with 
our estimated risk.''
  Mr. President, these conclusions were confirmed in 1990 by EPA's 
Science Advisory Board, in its report entitled ``Reducing Risks.'' The 
report urged EPA to target its environmental protection efforts on the 
basis of opportunities for the greatest risk reduction.
  So, Mr. President, I think we now have the picture. The Glenn-Chafee 
amendment allows aggrieved parties to come to Congress, and that is it. 
Other than trusting in the judgment--to use the words of the statute, 
``the sole discretion of the head of the agency,'' that is it. You have 
the sole discretion of the head of the agency, and that is exactly what 
we have right now.
  Mr. President, right now, we have the sole discretion of the head of 
the EPA. We have the sole discretion of OSHA and all these other places 
that are run amok. Listen to what EPA says about its own rules. This is 
not some rightwing interest group talking about how badly EPA is 
assessing its rules. This is EPA saying it. Its own Science Advisory 
Board confirmed it in 1990, and we are told, well, trust them. Let us 
continue to go with unfettered discretion, with ``sole discretion.'' 
Now, that is what Glenn-Chafee says--``sole discretion.''
  Now, Mr. President, we have been on the floor for 6 days. This is the 
6th day on this legislation, the 6th straight day going through all of 
these provisions and arguing about these provisions and all that. And 
we are told, well, leave it to the sole discretion of the agency head. 
And then, as for new rules, if it is implicitly--whatever that means, 
and I think it means whatever in the sole discretion of the agency head 
they want it to mean--you do not have to do for a new rule the cost-
benefit analysis. By the way, you do not even have to justify the 
cost--that benefits justify the cost.
  Mr. GLENN. If the Senator will yield, the Senator defends the 
petition process in the Dole-Johnston bill. On March 14, the Senator 
from Louisiana responded to a letter that Senators Levin, Lieberman, 
and I had sent to him asking his opinion on these, because he has had a 
lot of experience in these areas. We asked him to comment on S. 291 and 
S. 343. He sent us back a very thoughtful and well-reasoned-out letter 
response of his views at that time. I say that within that letter--and 
I will not read the whole letter because it was rather lengthy--but in 
talking about the petition process, the Senator from Louisiana stated 
the following:

       To help set priorities for the review, I prefer some sort 
     of advisory committee to assist the agency head. I am very 
     skeptical of the petition process, which is likely to skew 
     the priorities, and I am strongly opposed to any judicial 
     review of actions taken under a lookback provision.

  It seems to me that is pretty clear as to what the thinking was in 
March. Further on down in another paragraph, it says:

       The Dole bill, however, allows any person to petition for a 
     cost-benefit analysis of an existing regulation. If the 
     analysis shows that the regulation does not satisfy the 
     decisional criteria of the bill (that is, that the benefits 
     of the regulation outweigh the cost) the agency must either 
     revoke the regulation or amend it to conform to the 
     decisional criteria.
      Denial of the petition by an agency head is subject to 
     judicial review.

  Needless to say, I strongly disagree with this approach. Unless I am 
reading something wrong, the Senator from Louisiana is stating one 
thing in March and a different thing on the floor here today.
  Mr. JOHNSTON. Mr. President, I appreciate that question.
  This is the very provision that we accepted, the advice of Sally 
Katzen, who is head of OIRA, and other Democrats.
  Frankly, I think we ought to have advisory boards. But the advisory 
boards were objected to by the Senator from Ohio, the Senator from 
Michigan, Senator Levin, and others, who said we should not have this 
advisory board, and it would clog up the thing.
  I think advisory boards would be useful.
  Mr. GLENN. Could the Senator tell me when he objected to that? I do 
not believe there was an objection to that.
  Mr. JOHNSTON. I thought it was in our negotiating session. Does the 
Senator wish to get advisory boards back in?
  Mr. GLENN. I do not know what happened in our session. There were so 
many things that occurred in those sessions. It would be hard to go 
back and recall everything that occurred.
  Mr. JOHNSTON. The advisory boards, in my judgment, are useful, and I 
tried to sell advisory boards. I do not think they are central to the 
process, but if the Senator from Ohio thinks they are important, I will 
come back----
  Mr. GLENN. I would be happy to talk about advisory boards. We might 
be able to get some wording here that would be proposed as an amendment 
here, and we would be glad to consider that if that is possible.
  Mr. JOHNSTON. Under the original Dole amendment, people would be able 
to petition as often as they wished to. They would have an automatic 
judicial review of that.
  Sally Katzen suggested--I think it was an excellent idea. I think the 
Senator carried forward some of the ideas with that, which was we have 
180 days after the publication of the initial list within which to 
petition with a very high threshold. That is, we have to show a 
substantial likelihood that the existing rule does not meet the test. 
If you do not make the application during the 180 days, you cannot 
apply again for 5 years. This is only an every 5-year process.
  The appeals from that are consolidated so that there is only one 
appeal, so that the very problems that I was talking about in my bill, 
that Sally Katzen was talking about in our negotiating session, were 
accepted on terms suggested by her.
  It deals with that problem of agency overload and court overload. We 
did that. I think it was an ingenious suggestion that she made. We 
accepted it hook, line, and sinker. We said, ``Yes.'' That is the 
problem with this bill. It is hard to accept ``yes'' for an answer.
  Mr. President, this bill, virtually everything, virtually all the 
major areas of opposition to this bill as suggested have been dealt 
with, and dealt with successfully.
  Supermandate--that is, does this statute override any other 
underlying statutes? We, first of all, made it clear in the Dole-
Johnston original bill and Senators came back and said it is not clear. 
Well, we made it absolutely clear by stating it again on terms agreed 
to 

[[Page S 10102]]
by both the left and the right of this Chamber. Supermandate is solved.
  Judicial review, I submit, is solved. The language is clear.
  The $100 million threshold, that is a big thing. We had the amendment 
here and we passed it. It is now part of the process.
  The petition process, we accepted the Katzen suggestion, wholly and 
completely, and it is now incorporated. Now, they may want more. Was it 
Samuel Gompers, the labor leader, when they asked, ``What does labor 
want?'' and he said, ``More, more, more.'' Whoever said it, they should 
have said it for this bill. Because they come in and ask for things, 
and we do them, and somehow it is not enough.
  Effective day--we dealt with the effective date. The problem was we 
have all the ongoing rules that have to be redone. We say, OK, if you 
have a notice of proposed rulemaking out by April 1 of this year, you 
do not have to go back and redo any cost-benefit or risk assessment. 
You are home free.
  Now, I think that solves the problem because if you just started with 
a notice of proposed rulemaking since April 1, you got plenty of time 
to incorporate that in your bill.
  Superfund--Mr. President, one of the toughest issues in this bill as 
to which there was a huge amount of disagreement, I very strongly sided 
with the Senator from Ohio in thinking that all of this environmental 
cleanup, all of these Superfund provisions ought to be out of here. And 
we accepted. As a matter of fact, we did it by unanimous consent. We 
probably should have had a vote to have seared that into the memory of 
our colleagues, but at least we did it. Superfund is gone. Sayonara.
  The sunshine amendment--the Senator from Ohio suggested it. We 
accepted it. It is done. Now, it is, I am sure, not enough. I am sure 
that there is not enough we can do to satisfy some people, other than 
to make this bill solely in the discretion of the agency heads, because 
that in effect is what Glenn-Chafee does. Solely in the discretion, not 
reviewable by the court, do it if you want to, but if you did not want 
to, do not bother.
  And you have plenty of redress by coming to the Congress.
  Mr. GLENN. Would the Senator yield? That is what the Senator argued 
for in his letter.
  Mr. JOHNSTON. Not that, no, indeed.
  Mr. GLENN. Yes. I read it into the letter a little while ago. I will 
ask anybody to reread that to see if this is not a change in position.
  Mr. JOHNSTON. I have never said this ought to be consensual, that it 
ought to be solely in the discretion of the agency head. Never have 
said that. Never believed that. It simply is not so.
  I think we have delivered very, very well on this letter of mine.
  Mr. GLENN. This position, I submit to my friend from Louisiana, is 
180 degrees opposed. ``To help set priorities for the review, I prefer 
some sort of advisory committee to assist the agency head. I am very 
skeptical of a petition process which is likely to skew the priorities, 
and am strongly opposed to any judicial review of actions taken under a 
lookback provision.''
  Now, that is diametrically opposed to what the Senator is talking 
about here today. Further, if I might continue just for a second here, 
I think in all of our best recollection of those here who were in some 
of those negotiating sessions, Miss Katzen never supported the 
petitioner a right to have a major rule reviewed in 3 years. That is 
way too short and forces an agency to set priorities by petition and 
not by what is most important or what is most pressing.
  In addition, Dole-Johnston also allows for interlocutory appeal of 
three different issues. No. 1, a major rule. No. 2, does it require 
risk assessment? No. 3, does it require regulatory flexibility 
analysis? It allows judicial review in the middle of the rulemaking.
  Mr. JOHNSTON. If the Senator would allow me to answer that, first of 
all, on the reg flex, I did not support the reg flex. A big bipartisan 
vote of 58 votes approved reg flex.
  I really do not think it is workable. But the two Senators from 
Georgia, Nunn and Coverdell, have indicated that they would work on 
this and try to relieve the burden.
  Let me tell the Senator from Ohio, that is not the fault of this 
Senator. I suspect that if by any chance the Glenn-Chafee amendment got 
adopted, that it would have the Nunn-Coverdell amendment bit. Do not 
criticize Dole-Johnston for having Nunn-Coverdell.
 I was not for it, and the Senator would get it if he had it.

  With respect to the interlocutory appeal on the size of the rule, 
whether it is a $100-million rule or whether it is one that requires a 
risk assessment because it pertains to health, safety, and the 
environment, I had said all along that was a proposal which I put in. 
It was not in the original Dole amendment. It was meant to give agency 
heads flexibility and help. And if that is a real problem, it can come 
out. I think those who criticize the interlocutory appeal do not 
understand it. I mean, it is meant so agency heads will know at the end 
of 60 days whether they are going to have a challenge on whether it is 
a major rule.
  The problem you have now--for example, we had hearings on NEPA. If 
the Senator would follow through with me on this, we had hearings on 
NEPA and we found that EPA is spending $100 million a year on NEPA 
studies. As the Senator knows, an environmental impact statement is 
much more detailed and, in turn, much more expensive than an 
environmental impact assessment. But they always do an environmental 
impact statement rather than an assessment because they do not want to 
wait until the end of all this study and rulemaking and what have you 
and have to go back and redo it.
  That was, frankly, the idea of the interlocutory appeal. So that, if 
you do not complain about the size of the rule in the first 60 days, 
then that is forever sealed in. And if they do complain and do make the 
appeal, the agency head can moot the appeal by simply going back and 
agreeing to do the risk assessment and cost-benefit analysis. It is 
simply meant to help them.
  But if that is a problem, the whole thing can come out. Let me just 
make a remark or two and then I will yield the floor.
  Mr. ROTH. Will the Senator yield for a question?
  Mr. JOHNSTON. Yes, of course.
  Mr. ROTH. Am I correct in understanding that I believe every 
President since President Ford has required a cost-benefit analysis to 
be made, but, despite that general requirement through Executive order 
and otherwise, it has not been adhered to? Is that correct?
  Mr. JOHNSTON. There has been a risk assessment rulemaking rule out 
there--Executive order I should say--under every President since 
President Ford.
  By the way, I have a copy of it here. The problem is that it is 
consensual as well, and it is generally ignored, as my friend suggests.
  Mr. ROTH. That is the point I am trying to make. It is consensual 
under current conditions, and the Glenn-Chafee would make no change, it 
would continue to be consensual. Is that correct?
  Mr. JOHNSTON. It would even more clearly be consensual under those 
because they make sure, and they say, ``in sole discretion of the 
agency head,'' and then they go back, under section 625, and ensure 
that there is no appeal from the exercise of sole discretion. I do not 
know how you could otherwise have an appeal from the exercise of sole 
discretion, but they make sure that there is no appeal. It is 
nonenforceable. It is sort of the honor system, or I should say the 
buddy system, the bureaucratic buddy system.
  Mr. ROTH. So, in a very real way, the adoption of the Glenn-Chafee 
legislation would mean no significant change, at least as far as cost-
benefit is concerned?
  Mr. JOHNSTON. The Senator has put it very, very well. No significant 
change. And your recourse, according to the Senator from Ohio, is to 
come to Congress.
  Mr. ROTH. As the distinguished Senator from Louisiana already pointed 
out, that is what we are doing now. It is a fact--is it not a fact that 
the Vice President, the head of OIRA, and others, have said that there 
are bad rules on the books and something needs to be done? Is that not 
correct?
  Mr. JOHNSTON. That is exactly correct. But they say, trust us, we 
will do them in our sole discretion.
  Mr. ROTH. But that is the problem; it has not been done. Is that not 
correct?

[[Page S 10103]]

  Mr. JOHNSTON. That is, even according to EPA's own studies. They had 
one study in 1987 that determined that risks conformed--the EPA study 
in 1987 entitled, ``Unfinished Business'' says that they 
``systematically failed to properly rank risks.'' They ranked them 
according to public opinion rather than science.
  Then they came back 3 years later, in 1990, had another study from 
EPA's Science Advisory Board, and said they were continuing to do the 
same thing.
  I submit they are continuing to do the same thing today. And this 
same crowd is coming in and saying, trust us, we are doing it right, 
and no change needs to be made.
  Mr. ROTH. As I understand it, and of course none of us have had a 
chance to review that carefully, the new language of the Glenn-Chafee 
bill--but essentially what they have done is taken the teeth out of the 
legislation that was reported out by the Governmental Affairs 
Committee?
  Mr. JOHNSTON. That is exactly right. The Roth bill, which came out 
unanimously, out of Governmental Affairs, had a lot of teeth. The 
Senator and I have talked about that. My own view was I liked some of 
the teeth. I thought some of the other teeth were too sharp.
  Mr. ROTH. The Senator is partly right.
  Mr. JOHNSTON. But no need to worry, all of those teeth are gone. You 
do not even have false teeth here.
  Mr. ROTH. So this, in a sense, would be an exercise in futility.
  Mr. JOHNSTON. This is a waste of time. If you want to kill this bill, 
enact this Glenn-Chafee amendment, beat your chest, feel good about it. 
It has risk assessment in the title of the bill, but it amounts to 
nothing, zero.
  Mr. ROTH. I congratulate the distinguished Senator from Louisiana for 
his very penetrating analysis.
  Mr. JOHNSTON. I thank my colleague and yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, this was an interesting discussion. It 
shows the complexities of this legislation and why we should not be 
rushed on the floor of the Senate putting it into effect. We should be 
considering all these things and all the legal ramifications of it in 
every respect.
  I come back, though, that if the Agency passes something that is 
considered to be not OK, or tries to put something into effect, that 
anyone can petition the Agency and say, ``We think this should go back 
to Congress,'' or notify their Congressman, notify their Senator, we 
can call it back.
  I do not see yet why that is not--that is where the responsibility 
lies, is right here. We are the ones who passed the original 
legislation. What we have done is, for the first time, put into play a 
specific arrangement. We are detailing it in legislation. We are 
inviting people to watch what goes on in the agencies and say we will 
bring it back.
  The Senator from Louisiana is absolutely correct. We always have the 
right in Congress to do something like this if we want to pass separate 
legislation. But that takes a lot of time. It is time consuming, it 
could go on for a whole session of Congress. It could go on for another 
year. What we did is provide, in both pieces of legislation, time 
restraints by which Congress has to complete its action. In other 
words, any authorizing committee can call back a rule or regulation for 
reconsideration before it goes into effect. I really do not see how 
there could be a better protection than that. I do not know what else 
there is that would be needed.
  Let me read some things into the Record that apply to this judicial 
review:
 Judicial Review Provisions in Glenn-Chafee and Dole-Johnston Versions 
                   of S. 343--A Comparative Approach


               1. rulemaking file requirements and review

       The Dole-Johnston bill amends the A.P.A. to add elaborate 
     rulemaking file requirements to all notice-and-comment 
     rulemaking; these sections contain their own confusing 
     judicial review provision [553(m), p. 12] and would encourage 
     lawsuits over the adequacy of the file and whether items were 
     placed in the file as quickly as possible. Additionally, the 
     Dole-Johnston bill would change the standards of review for 
     rules issued under notice-and-comment; it would add 5 U.S.C. 
     Sec. 706(a)(2)(F) to require that the factual basis for a 
     rule have ``substantial support'' in the rulemaking file. See 
     discussion below.
       The Glenn-Chafee bill does not include these troublesome 
     provisions.


            2. judicial review of scheduling review/lookback

       Section 623(e) (p. 30) of the Dole-Johnston bill provides 
     for judicial review of agency non-compliance with the process 
     for scheduling of review of existing rules. However, the 
     section does not clearly limit judicial review to only the 
     reasonableness of the schedule. The scope of review is 
     broad--i.e., ``agency compliance or noncompliance with the 
     requirements of this section'' and review exists 
     ``notwithstanding section 625.'' Review is limited to the 
     D.C. Circuit Court of Appeals. Review of final agency action 
     must be filed within 60 days of publication of the final 
     rule. However, the section does not preclude interlocutory 
     review.
       Section 625(c) of the Glenn-Chafee bill (p. 18) provides 
     for judicial review of the agency regulatory review but 
     precludes review of agency decisions whether to place a rule 
     on the schedule and the deadlines for completion.
                3. Review of decision to ``sunset'' rule

       Section 623(g)(3) (p. 33-34) of the Dole-Johnston bill 
     grants interested parties the right to petition the D.C. 
     Circuit Count of Appeals to extend the period for review of a 
     rule up to two years and to grant equitable relief to prevent 
     termination where, inter alia, termination of the rule would 
     not be in the public interest.
       The last sentence of section 623(h) provides that the 
     decision of an agency to not modify a major rule ``shall 
     constitute final agency action for the purposes of judicial 
     review.'' Section 623(j)(2) similarly states that failure to 
     promulgate an amended major rule or to make decisions by the 
     date required shall be considered final agency action.
       Under the Glenn-Chafee bill, rules would not automatically 
     ``sunset.'' Instead, the agency would be required to publish 
     a notice of rulemaking to terminate a rule. 
     Sec. 625(e)(1)(C)(iv).


                  4. jurisdiction and judicial review

       Clarity of limitation on judicial review.--Section 625(a) 
     and (b) of the Dole-Johnston bill (p. 38) affirmatively grant 
     jurisdiction to review ``any claims of noncompliance with 
     this subchapter and subchapter III.'' While compliance is 
     subject to judicial review ``only in accordance with this 
     section,'' subsection 625(d) arguably permits broad judicial 
     review.
       By contrast, the Glenn-Chafee bill clearly states there is 
     no judicial review except as provided therein. Sec. 623(a), 
     p. 13. Section 623 of the Glenn-Chafee bill is very clear 
     concerning what is reviewable and what is not.
       Procedural errors.--Section 625 of the Dole-Johnston bill 
     is unclear as to whether procedural errors are reviewable. It 
     states that ``failure to comply'' may be considered by the 
     court solely to determine ``whether the final agency action 
     is arbitrary and capricious or an abuse of discretion (or 
     unsupported by substantial evidence where that standard is 
     otherwise required by law.'' 625(d), p. 39
       The use of the words ``failure to comply'' in at least 
     three places in section 625 suggests procedural errors are 
     reviewable.
       The limitation of review to the ``arbitrary and 
     capricious'' or ``abuse of discretion'' test may not be 
     sufficient to keep courts from reviewing alleged agency non-
     compliance just as they otherwise would under the A.P.A. That 
     was the view of one court in a case where Congress limited 
     review of agency procedural error to those which rendered the 
     agency action arbitrary and capricious. That court had 
     difficulty understanding the limitation as violation of 
     procedure is often regarded as rendering the action arbitrary 
     and capricious. Small Refiner Lead Phase-Down Task Force v. 
     U.S. E.P.A., 705 F.2d, 521
      (D.C. Cir. 1983). See also, Motor Vehicle Mfrs. Assn. of 
     U.S. v. E.P.A., 768 F. 2d 385 (D.C. Cir. 1985) (statutory 
     test of action in excess of statutory authority same 
     standard as arbitrary and capricious).
       The Glenn-Chafee bill, by contrast, makes it clear that 
     courts are not to review the underlying steps and procedures 
     leading up to the cost-benefit analysis and risk assessment. 
     Section 623(d) expressly states that ``. . . the court shall 
     not review to determine whether the analysis or assessment 
     conformed to the particular requirements of this chapter.'' 
     Sec. 623(d), p. 14. The Glenn-Chafee bill would permit the 
     court to consider the actual documents produced by the agency 
     to evaluate cost-benefit analysis and risk assessment in 
     determining the reasonableness of the agency action but not 
     to permit review of the underlying steps to development of 
     the risk assessment or cost-benefit analysis.
       Judicial ``second-guessing'' of agency judgment and 
     scientific expertise The Dole-Johnston bill creates great 
     risk that courts will second guess agency judgments and 
     scientific determinations which go into the cost-benefit 
     analysis, risk assessment, and application of the 
     prescriptive decisional criteria.
       The Dole-Johnston bill contains many prescriptive 
     requirements which tell agencies what they must consider and 
     what they cannot. However, many of these factors are very 
     difficult in application. Yet consideration of factors 
     Congress has decided are not to be considered has been cited 
     as a basis for reversal under arbitrary and capricious 
     review. 

[[Page S 10104]]
     Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 91 S. Ct. 
     814, 823, 28 L. Ed. 2d 136 (1971).
       S. 343 turns administrative law on its head if it takes 
     away agency's ability to make policy choices and to have 
     those upheld so long as they are reasonable and consistent 
     with the statute being applied. See cases cited in Small 
     Refiner Lead Phase-Down Task Force, 705 F. 2d at 520. If 
     Congress takes away an agency's discretion to make policy 
     choices, then special interests challenging a rule will argue 
     that an abuse of discretion standard permits the court to 
     second-guess the agency's decision as to what is a ``policy 
     judgment'' and what is ``scientific understanding.''
       Courts are not situated to ``second-guess'' the 
     prescriptive requirements of the Dole-Johnston bill. Courts 
     are not well situated to review the underlying basis of cost-
     benefit analyses and risk assessments against the 
     prescriptive standards of the bill.
       ``. . . the crowded states of judicial dockets offers a 
     highly practical reason why judges will not, and probably 
     should not, devote the considerable time and effort needed to 
     review a several-thousand-page agency
      record, informed by a thorough understanding of the 
     substance of risk-related regulatory problems, in order to 
     see whether or not that agency determination was 
     arbitrary.''

     Justice Breyer, Breaking the Vicious Circle: Toward Effective 
     Risk Regulation (Cambridge, Mass.: Harvard University Press 
     1973), pp. 58-59 (describing why courts are not 
     institutionally suited to resolve risk issues).
       Prejudicial error [Note: Neither bill contains a 
     prejudicial error provision in this section. However, Senator 
     Johnston says concerns with the decisional criteria and 
     judicial review provisions are solved by the prejudicial 
     error test in 5 U.S.C. 706. This is not an adequate 
     protection.]
       The problems with judicial review of the many prescriptive 
     requirements of the Dole-Johnston bill are also not cured by 
     the ``prejudicial error'' test in 5 U.S.C. Sec. 706. That 
     test, which is unchanged from the current APA, has been 
     described as requiring remand if the court ``cannot be sure 
     that under the correct procedures the Agency would have 
     reached the same conclusion . . .'' Weyerhaeuser Co. v. 
     Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978). That case 
     invalidated a pollution emission limitation rule for failure 
     to provide adequate notice for comment on agency data even 
     though petitioner could not show that recomputation of the 
     data would have made the process so costly as to invalidate 
     the limitation as an abuse of discretion.
       Clogging the Courts.--The language of section 625 will 
     encourage years of litigation before even the question of 
     what is reviewable is resolved. This bill gives regulated 
     industry many hooks to delay rulemaking and then to challenge 
     the final result. If those steps are subject to judicial 
     review, there will be every incentive to stop regulation 
     through complex and lengthy judicial review proceeding. When 
     this is combined with the increased time and cost of 
     rulemaking under this bill, the result may be gridlock. This 
     frustration of law is not a desirable goal.
       Judicial review of whether the agency chose the ``least 
     cost alternative,'' given the great differences in underlying 
     data, will generate challenges.--The Dole-Johnston bill takes 
     away agency discretion and mandates that all costs and 
     benefits be turned into one number and that the agency select 
     the ``least cost alternative'' of those available under 624 
     (b) or (c). Yet some say that cost-benefit analyses may be 
     off by a magnitude of hundreds. This makes it difficult for 
     agencies to achieve any certainty concerning application of 
     cost-benefit analyses. If agencies must constantly be looking 
     over their shoulder at the possibility of judicial review, it 
     is clear this will provide many opportunities for challenges 
     to rules by the regulated industry.
       By contrast, the Glenn-Chafee bill provides a range of 
     discretion to the agency decision-maker in section 622(f) and 
     is much more clear that the decisional criteria do not alter 
     statutory criteria for rulemaking.


       5. interlocutory review of determination of ``major rule''

       The Dole-Johnston bill permits interlocutory appeal of an 
     agency decision that a rule is not a major rule or is not 
     subject to risk assessment requirements. Sec. 625(e) p. 39.
       The Glenn-Chafee bill requires ``a clear and convincing 
     showing that the determination is erroneous in light of the 
     information available to the agency at the time the agency 
     made the determination. Sec. 623(c). It does not authorize 
     interlocutory review.


 6. dole-johnston amends the APA standards of judicial review for all 
                  agency rules--glenn-chafee does not

          Factual basis for rules--5 U.S.C. Sec. 706(a)(2)(F)

       The Dole--Johnston bill amends 5 U.S.C. 706(a)(2) by adding 
     (F) which requires courts to set aside agency action, 
     findings and conclusions found to be ``without substantial 
     support in the rulemaking file, viewed as a whole, for the 
     asserted or necessary factual basis, as distinguished from 
     the policy or legal basis, of a rule adopted in a proceeding 
     subject to section 553. . .''
       The Dole-Johnston version of S. 343 also requires the final 
     notice of rulemaking to explain how the factual conclusions 
     upon which the rule is based are substantially supported in 
     the rulemaking file. 5 U.S.C. Sec. 553(g)(4), p. 8). The 
     ``rulemaking file'' must identify factual and methodological 
     material that pertains directly to the rulemaking and was 
     considered by the agency or submitted to or prepared by or 
     for the agency in connection with the rulemaking. 
     Sec. 553(j)(3)(d), p. 10.
       Position: The standards for judicial review in the APA 
     should not be changed. Agencies should be able to rely on 
     their knowledge and expertise in informal notice-and-comment 
     rulemaking. Review should be on an arbitrary and capricious 
     standard, not require that the factual basis have 
     ``substantial support'' on a limited record. This new 
     standard will create much litigation in an established area 
     of the law.
       This standard may encourage judicial intrusion into 
     agency's scientific determinations. In Corrosion Pipe 
     Fittings v. E.P.A., 947 F.2d 1201, 1213-1214 (5th Cir. 1991), 
     the court held that the ``substantial evidence'' test used in 
     the Toxic Substances Control Act for notice-and-comment 
     rulemaking was a more rigorous standard than the ``arbitrary 
     and capricious'' standard applied now to informal rulemaking 
     and showed that Congress wanted the courts to scrutinize the 
     agency's actions more closely. The Court then proceeded to 
     apply close scrutiny to the agency's cost-benefit
      calculations and invalidated the asbestos rule that had 
     taken ten years to develop. 947 F. 2d at 1223-1230.
       New section 706(a)(2)(F) requires the agency to amass a 
     record for potential litigation in every case. It calls into 
     question the principle that an agency can utilize its 
     knowledge and expertise.
       It gives well-healed parties the opportunity to skew the 
     results on judicial review by salting the rulemaking file 
     with comments and materials which support their position. 
     Even in cases where the agency position has an adequate 
     factual basis in scientific literature, this standard might 
     require the agency to list all sources in the file or not be 
     able to later rely on them if a challenge is raised on 
     judicial review.


                  7. multiple opportunities for review

       Dole Johnston contains other provisions permitting judicial 
     review. Glenn-Chafee contains other provisions making it 
     clear that judicial review is not available. See, 
     Sec. 636(d), p. 40, no judicial review of risk assessment 
     guidelines' development, issuance, or publication; Sec. 646 
     (p. 48), no judicial review of executive oversight authority; 
     Sec. 6(f), p. 70, no judicial review of study of comparative 
     risk; Sec. 6(f), p. 78, no judicial review of regulatory 
     accounting.


   8. glenn-chafee reduces uncertainty and increases discretion and 
thereby reduces opportunities for successful challenges to agency rules

       An example where Glenn-Chafee gets rid of a problem is the 
     effective date provision, Sec. 8, p. 70. By making it clear 
     that the section does not apply to pending rules and by 
     providing a reasonable grace period, this eliminates a 
     troublesome problem for pending rules.


                       9. regulatory flexibility

       Glenn-Chafee eliminates some of the problems with 
     regulatory flexibility under the Dole-Johnston bill. Section 
     611 (p. 48) avoids inconsistent statutes of limitation where 
     that for the underlying rule is less than 1 year. It provides 
     that court may stay the rule if a failure is not corrected 
     within 90 days but does not automatically terminate a rule if 
     not corrected in that period. Its judicial review standard is 
     more limited, and it does not contain the decisional criteria 
     of the Dole-Johnston bill.

  Mr. President, I think this indicates to all who might be paying 
attention to this debate in the Chamber today how very, very complex 
and how far-reaching some of these decisions are. It is not something 
we can rush through. I know it has been stated we want to move forward 
as rapidly as possible, and I agree with that. But I also want to make 
sure that while we are setting up a new regulatory review process, we 
at the same time make every protection for whatever existing law 
deserves that kind of protection, and before we make changes that we 
make very certain we do it in a way which protects the health and 
benefit and safety of the American people.
  Mr. President, I would go further in talking a little bit more about 
the cost-benefit analysis and the decisional criteria.
  Glenn-Chafee has no ``decisional criteria requiring agencies to pass 
cost-benefit tests before issuing a rule.''
  Our response to some of the charges under that are, No. 1: Both the 
Glenn-Chafee and Dole-Johnston substitutes require agencies to do the 
same type of cost-benefit analysis. We believe in making agencies do 
such analyses to better understand what the costs and benefits are of a 
rule. There is no problem with that with either bill. The differences, 
though, between our substitutes is how they use cost-benefit analysis.
  Glenn-Chafee uses cost-benefit analysis as a tool and not just as a 
final decisional criteria. There is no language in the Glenn-Chafee 
substitute that states, ``An agency shall not promulgate a rule,'' 
unless it passes a 

[[Page S 10105]]
cost-benefit test. Glenn-Chafee requires agencies to provide an 
explanation and certification of whether, one, benefits of the rule 
justify the cost and, two, the rule achieves the objectives of the 
rulemaking in a more cost-effective manner than the alternatives.
  If it cannot make such a determination, it has to explain why not. 
The Dole-Johnston substitute has decisional criteria that prohibit 
using a rule unless, one, the benefits justify the costs, the rule uses 
flexible alternatives to the extent practicable, the rule is the 
``least-cost alternative'' that satisfies the objectives of the 
statute, and if a risk assessment is required, the rule is likely to 
``significantly reduce the risks addressed by the rule.''
  Why the decisional criteria are problematic: No. 1, cost-benefit 
analysis is an imprecise science. Cost and benefits are hard to 
quantify and are loaded with assumptions, and some economists might 
even say, tell me what answer you want and I will give you the right 
numbers for costs and benefits.
  Agencies should not be required to decide whether or not to 
promulgate a rule based just on a cost-benefit test.
  No. 2, another reason why decisional criteria are problematic: 
Agencies would have to choose the least-cost alternative. We should 
require agencies to choose the most cost-effective rule, not just the 
cheapest. The distinguished Senator from Louisiana has pointed to the 
out for agencies. They can choose something other than a least-cost 
solution in the event of ``scientific, technical or economic 
uncertainties or nonquantifiable benefits to health, safety or the 
environment.''
  But what if there are certain quantifiable benefits? Agencies would 
still have to put out the least-cost rule, and that just makes no 
sense. Even if something is more cost-effective, beneficial to the 
people of this country, we still have to go with whatever the 
alternative was that was solely least cost. That makes no sense.
  Mr. ROTH. Mr. President, will the Senator yield?
  Mr. GLENN. I am almost finished. Another minute or two and I will be 
glad to yield.
  No. 3, agencies must prove that a rule significantly reduces risk. 
The FAA tells us, however, that some of their safety rules, while quite 
important and quite effective, may not pass the ``significant'' test.
  No. 4, if agencies determine that the benefits of a rule do not 
justify its costs, that rule should come back to Congress. And that is 
a key element of this; that rule should come back to Congress if the 
agency determines that the benefits do not justify its costs. Agencies 
should not be the ones to decide whether to issue a rule based on a 
cost-benefit test. That rule should come back to Congress to decide 
whether a rule should go forward or not, and that is provided. 
Congressional veto, as it is called, makes more sense than decisional 
criteria. It does not hand over Congress' responsibilities to the 
agencies.
  Mr. President, I yield the floor.
  Mr. ROTH addressed the Chair.
  The PRESIDING OFFICER (Mr. Frist). The Senator from Delaware.
  Mr. ROTH. Mr. President, I say to my distinguished friend and 
colleague from Ohio that I have been in negotiations and discussions 
with representatives of his side of the aisle in an effort to revise 
the decisional criteria with respect to the least cost. I am 
sympathetic to the concept of utilizing a test of cost-effectiveness or 
greater net benefit to avoid some of the problems raised in his 
discussion of this section.
  I wonder if the distinguished Senator is willing to proceed along 
those lines at this time in developing such an amendment?
  Mr. GLENN. Yes. As I understand it, what the Senator was proposing 
was that there are some negotiations going on in this regard, and we 
would be willing to proceed with further negotiations with regard to 
cost effective as opposed to least cost; is that correct?
  Mr. ROTH. That is correct.
  Mr. GLENN. Certainly, I always want to negotiate on these things and 
see what we can come out with.
  Mr. ROTH. I think it important we proceed on this matter, because it 
is an important one, and that we proceed as rapidly as possible. To be 
candid, I am disappointed that we have not been able to address this 
problem on the floor.
  Mr. GLENN. I think what the distinguished Senator from Delaware is 
addressing is one of the most important items in all of this 
legislative package. I think it is important that we get that one 
ironed out, because it is a major issue in how we deal with regulatory 
reform. I agree with him.
  Mr. ROTH. I thank the distinguished Senator for his comments.
  Mr. President, I rise to call upon my colleagues to support 
meaningful regulatory reform. I want to explain why I believe that the 
Dole-Johnston compromise, S. 343, is the key to changing the status 
quo, and why the Glenn substitute is not the solution to reforming the 
regulatory process.
  I believe that regulatory reform is one of the most important issues 
we face. The reason is that, overall, Government regulation has an 
enormous impact on our lives--for better or for worse. If regulations 
are well-designed and implemented, they can do a lot of good--by making 
a cleaner environment, safer workplaces, and safer products. But, at 
the same time, regulations can be very costly, and, if poorly designed, 
too costly--by raising prices, taxes, and paperwork; diminishing wages; 
eating up time; and wasting opportunities to do better things with our 
limited resources. The cumulative regulatory burden costs about $600 
billion per year. I believe that, if this massive regulatory machine 
were retooled, it could do much more good at less cost.
  Most experts who have examined the regulatory process, regardless of 
background or political bent, have concluded that the regulatory 
process is seriously out of whack and must be reformed. Few if any of 
my colleagues would dare to say publicly that we should be happy with 
the status quo.
  So the question is, why is there so much controversy about the S. 
343? The answer is simple--it is very hard to change the status quo in 
a significant way. It is a Herculean task to reform one of the most 
untamed frontiers of big Government--a massive regulatory machine that 
costs the average American family about $6,000 per year.
  That explains why an earlier attempt at regulatory reform, S. 1080, 
which passed the Senate 94-0 in 1982, was killed in the House. And that 
explains why people are accusing supporters of S. 343 of wanting to 
expose the public to tainted meat, breast cancer, and contaminated 
drinking water. None of this is remotely true, and it does not belong 
on the Senate floor.
  We wasted days last week on meritless arguments that S. 343 needs 
specific exemptions for meat inspection rules, mammography rules, and 
so on. The fact is, these arguments got a lot of press, but such 
exemptions were not needed. The Dole-Johnston compromise has a clear 
exemption for threats to human health and safety, as well as other 
emergencies.
  In fact, the Glenn bill itself does not have such exemptions, 
because, as anyone recognizes who knows how these bills work, such 
exceptions are not needed.
  The truth is, if you compare the Dole bill and the Glenn bill section 
by section, they look a lot alike. At bottom, there are only a few key 
differences. But these few differences are critical to effective 
regulatory reform.
  First, meaningful regulatory reform must change future rules. The key 
to ensuring that new rules will be efficient and cost-effective is to 
have an effective cost-benefit test.
  The Dole bill has a focused cost-benefit test. The decisional 
criteria in section 624 ensures that the benefits of a rule will 
justify its cost, unless prohibited by the underlying law authorizing 
the rule. Section 624 is not a supermandate; it does not trump existing 
law. It simply tells the agency, if possible and allowed by law, to 
issue regulations whose benefits justify their costs. That is plain 
common sense.
  In contrast, the Glenn bill has no cost-benefit decisional criteria. 
The bill requires that a cost-benefit analysis be done, but the bill 
does not require that the cost-benefit analysis be used or that the 
rule will be affected by the cost-benefit analysis.
  The agency only has to publish a determination whether the benefits 
of a rule will justify its costs and whether the regulation is cost-
effective. But the Glenn bill does not push regulators to issue rules 
whose benefits actually do 

[[Page S 10106]]
justify their costs. I have always believed that an effective 
regulatory reform bill should have a stronger cost-benefit test.
  Some of my colleagues, including Senators Glenn and Levin, have 
complained repeatedly about the least cost component of the decisional 
criteria. Section 624 of S. 343 says, whether or not the benefits of a 
rule can justify its costs, the agency should select the least cost 
alternative the achieves the objectives of the statute.
  I think there is some merit to the concern that the least cost 
standard is too limited. If a rule costs a little more than the least 
cost alternative but provides much greater benefits, I believe that the 
agency should pick the much more beneficial rule--even if the benefits 
are quantifiable or are not environmental, health or safety benefits. 
Why not? Why not spend a little more to get much greater benefits for 
the public?
  Yet, while I share the concerns of many of my colleagues, I have not 
been able to work out a solution. For weeks, I have tried to work out 
two solutions--a most cost-effective test or a greater net benefits 
test--with my other colleagues. I believe that either test is far 
better than the least cost test with its vague exception for certain 
nonquantifiable benefits. Yet, we have made no progress, even though 
proponents of the substitute continue to complain about the least cost 
standard. I think it is time we worked this out in a bipartisan 
fashion.
  Now, I want to return to a second point about regulatory reform: 
effective regulatory reform cannot be prospective only; it must look 
back to reform old rules already on the books. The Dole-Johnston 
compromise contains a balanced, workable, and fair resolution of how 
agencies should review existing rules. Agencies may select for 
themselves any particular rules that they think need reexamination, 
while allowing interested parties to petition the agency to add an 
overlooked rule. To ensure that only a limited number of petitions will 
be filed, S. 343 limits petitions to major rules and sets a high burden 
of proof--petitioners must show a substantial likelihood that the rule 
could not satisfy the cost-benefit decisional criteria of section 624.
  This is an efficient and workable method to review problematic rules.
  The Glenn substitute, on the other hand, makes the review of agency 
rules a voluntary undertaking. There are no firm requirements for 
action--no set rules to be reviewed, no binding standards, no 
meaningful deadlines. The Glenn substitute simply asks that, every 5 
years, the agencies issue a schedule of rules that each agency in its 
sole discretion thinks merits review. It does not require any 
particular number of rules to be reviewed. And, if someone asks the 
agency to review a particular rule, there is no judicial review of a 
decision declining to place the rule on the schedule.
  Moreover, there is no judicial review of deadlines for completing the 
review of any rules. No matter how irrational a rule is, no matter how 
many people it is burdening, an agency does not have to review it. If 
the agency happens to put the rule on the schedule, nothing prevents 
the agency from procrastinating for 11 years. Again, the only deadline 
is a modest 11-year deadline for reviewing the rule.
  The third point I want to emphasize is that effective regulatory 
reform must be enforceable to be effective. That means there has to be 
some opportunity for judicial review of the requirements of the 
legislation, just as there is with almost any law Congress passes. S. 
343 strikes a balance by allowing limited, but effective, judicial 
review. I should note at the outset that S. 343 has been 
mischaracterized as a lawyer's dream and a litigation morass. In fact, 
S. 343 provides less judicial review than is normally provided for any 
law that Congress passes.
  S. 343 carves away from the standard level of judicial review 
provided by the Administrative Procedure Act, which has existed for 
almost 50 years. The limited judicial review provided by S. 343 will 
help discourage frivolous lawsuits, and that is why S. 343 has limited 
judicial review. At the same time, it does allow an agency to be held 
accountable for complying with the major requirements of the bill.
  An agency's compliance or noncompliance with the provisions of S. 343 
can be considered by a court to some degree. The court can, based on 
the whole rulemaking record, determine whether the agency sufficiently 
complied with the cost-benefit analysis and risk assessment 
requirements of S. 343 so that the rule passes muster under the 
arbitrary and capricious standard. The arbitrary and capricious 
standard is very deferential to the agency. A court would uphold the 
rule unless that agency's cost-benefit analysis or risk assessment was 
so flawed that the rule itself was arbitrary and capricious. The court 
would not strike down a rule merely because there were some minor 
procedural missteps in the cost-benefit analysis or risk assessment.
  In contrast, the Glenn substitute, as now redrafted, does not permit 
meaningful judicial review of the risk assessment or cost-benefit 
analysis. The Glenn substitute only requires a court to invalidate a 
rule if the cost-benefit analysis or risk assessment was not done at 
all. But the Glenn substitute does not really allow the court to 
consider whether the cost-benefit analysis or risk assessment was done 
properly. Indeed, Senator Glenn has weakened the language originally in 
his bill so that now substantial portions of his bill are irrelevant to 
the extent that a court could not require the agency to perform the 
cost-benefit analysis, risk assessment, or peer review in the manner 
prescribed by the bill.
  Compliance with cost-benefit analysis and risk assessment 
requirements of the bill would be optional by the agency, the same way 
it is optional for them to comply with the Executive order that now 
requires these analyses.
  Senator Glenn has claimed that his bill is essentially the same as S. 
291--the regulatory reform bill I introduced in January and which 
received the bipartisan support of the Committee on Governmental 
Affairs. Although the original Glenn bill was similar to the Roth bill, 
the current Glenn substitute seriously differs from the Roth bill. For 
example, Senator Glenn has seriously weakened the review of rules 
provision.
  The Roth bill required agencies to review all major rules in a 10-
year period, with a possible 5-year extension, or the rules would 
sunset, or terminate. The revised Glenn substitute lacks any firm 
requirement about the number of rules to be reviewed.
  Worse still, Senator Glenn has weakened the judicial review provision 
that was in the Roth bill and that originally appeared in the Glenn 
bill. Section 623(e) of the Roth bill and the original Glenn bill 
stated that the cost-benefit analysis and risk assessment ``shall, to 
the extent relevant, be considered by a court in determining the 
legality of the agency action.''
  That meant that the court should focus on the cost-benefit analysis 
and risk assessment in determining whether the rule was arbitrary and 
capricious. Now, the Glenn substitute strikes that language. The Glenn 
substitute merely asks the agency do the cost-benefit analysis and risk 
assessment, but the agency can do a sloppy job. The agency also does 
not have to act upon the analyses and issue a rule whose benefits 
justify its costs. In fact, the agency simply can ignore the cost-
benefit analysis. And nobody can do much about an agency that is doing 
a bad job. For a reviewing court, the analyses are just some more 
pieces of paper among the many thousands of pieces of paper in the 
rulemaking record.
  The court does not have to focus on the cost-benefit analysis in 
determining whether the rule makes sense. Mr. President, that is not 
real regulatory reform. That is protecting the bureaucracy at the 
expense of the public.
  I should also mention that the Glenn bill seriously weakens the risk 
assessment provisions of the Roth bill. The Glenn substitute 
significantly carves back on the number of agencies and programs that 
would have to comply with the risk assessment requirements.
 Moreover, the risk assessment language itself is weakened. As just one 
example, section 634(c)(1) of the Glenn language reverses the standard 
interpretation of how defaults should be used. The substitute relies on 
a minority comment in the National Academy of Science report, Science 
and Judgment. That is, the Glenn substitute 

[[Page S 10107]]
prefers default assumption when relevant data is available. That is not 
what good scientists would do. And that is not what the majority of the 
National Academy would recommend.

  Finally, Senator Glenn has weakened the definition of ``major rule.'' 
There are no narrative provisions under which OMB could list certain 
problematic rules as major rules subject to full analysis.
  Now, as I mentioned, if you compare S. 343 with the Glenn substitute, 
you would see that, section-by-section, they look similar. Both have 
provisions for cost-benefit analysis, risk assessment, review of 
existing rules, comparative risk analysis, market mechanisms and 
performance standards, reform of the Regulatory Flexibility Act, 
congressional review of rules, and regulatory accounting.
  But without a focused and effective cost-benefit test, there is 
nothing to require future rules to be justifiable and cost-effective. 
And without an effective lookback provision with real requirements, 
there is nothing to ensure that old rules already on the books will be 
reformed. Finally, without effective judicial review, we may as well 
not have a statute at all--we could keep the existing Executive order 
12866 that governs regulatory planning and review.
  But the whole reason for regulatory reform legislation is that the 
Executive orders for regulatory review, issued by every President since 
President Ford, have not been working well enough. There is widespread 
consensus that the regulatory process is broken and that firm action is 
needed. There is widespread agreement that many rules have been issued 
in violation of the requirements of the Executive orders. Many rules 
could not be justified if scrutinized under a cost-benefit test. Yet, 
Executive orders since President Ford have required cost-benefit 
analysis. The current Executive order of President Clinton, No. 12866, 
similarly requires cost-benefit analysis, but again, there is nothing 
to ensure that the agencies will comply. There is no effective judicial 
review in Senator Glenn's substitute to solve this problem.
  I also should add that many of the objections that Senator Glenn and 
others have raised are off the mark or have already been addressed. 
First, we agree agencies should be required to perform risk assessment 
and cost-benefit analysis. Second, S. 343 clearly does not override 
existing statutory criteria. Moreover, S. 343 is not a special interest 
bill. It does add a petition process to review rules so that the work 
does get done. I should also note that we did add Senator Glenn's 
sunshine provision verbatim. Finally, as I have detailed, we agree with 
Senator Glenn that ``judicial review should be available to ensure that 
final agency rules are based on adequate analysis.'' The Dole-Johnston 
compromise meets these principles.
  The Dole-Johnston compromise merely directs regulators to issue 
regulations whose benefits justify their costs. But the bill does not 
override existing law. This should not be a radical idea in the White 
House or on Capitol Hill. I do not believe that the American people 
think it is radical to ask that the benefits of regulations justify 
their costs.
  Similarly, review of existing rules has been required for almost 15 
years under Executive order. Yet, there is a lot of evidence that 
getting agencies to review existing rules is a lot easier said than 
done. In the first annual report on President Clinton's Executive Order 
12866, OIRA Administrator Sally Katzen admitted that bureaucratic 
incentives make reviewing rules a difficult undertaking. In discussing 
the ``lookback'' requirement of Executive Order 12866, Administrator 
Katzen said:

       It had proven more difficult to institute than we had 
     anticipated. . . . [A]gencies are focused on meeting 
     obligations for new rules, often under statutory or court 
     deadlines, at a time when staff and budgets are being 
     reduced; under these circumstances, it is hard to muster 
     resources for the generally thankless task of rethinking and 
     rewriting current regulatory programs.

  After extensive review of the regulatory process, Vice President Gore 
concluded that ``thousands upon thousands of outdated, overlapping 
regulations remain in place.'' The long but disappointing record of 
executive branch review efforts necessitates a legislative mandate. But 
this must be a real mandate, with real requirements. As redrafted, the 
Glenn substitute does not adequately address this pressing problem. The 
Dole bill will bring real change.
  The Dole compromise reflects many comments and suggestions from 
numerous Senators of both parties, the Clinton administration, the 
American Bar Association, and many scholars and legal experts.
  In sum, the Dole-Johnston compromise strikes a balance between reform 
that is strong but workable. I urge my colleagues to set aside partisan 
politics and support the effort to restore common sense to the 
regulatory process.
  Mr. President, I yield back the floor.
  Mr. JOHNSTON. Did the Senator have a question for me?
  Mr. ROTH. No.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, getting back to this question of the 
scope of review under section 706 of the Administrative Procedure Act, 
which is contained in our bill, there is a subsection (e), about which 
there has been some comment and argument. Subsection (e) adds new 
language as follows, that:

       The reviewing court shall . . . hold unlawful and set aside 
     an agency action if it is:
       (e) . . . substantial evidence in a case subject to section 
     556 and 557 . . . and otherwise reviewed on the record.

  Excuse me, it is not subsection (e). It is subsection (f). It says it 
shall hold unlawful an action:

       Without substantial support in the rulemaking file viewed 
     as a whole, for the asserted or necessary factual basis.

  This, as I understand it, is a principle of law which is about a 
century old. And this codifies that view. It was first proposed by 
Senator Bumpers, and I hope Senator Bumpers will come over and defend 
this provision.
  From my own point of view, it adds, really, very little. It has very 
little to do with risk assessment. It has nothing to do with risk 
assessment or cost-benefit analysis because that provision does not 
relate to risk assessment or cost-benefit analysis. That relates to the 
Administrative Procedure Act appeals, which are outside of cost-benefit 
analysis or risk assessment.
  So it is really, in my view, not a very important issue in this bill. 
I hope and believe that Senators will be able to get together on that 
issue.
  Mr. President, I believe that we have accommodated virtually every 
complaint with this bill, save some of those which we have debated. We 
have not yet satisfied everybody on toxic relief inventory. But I 
believe that is also in the total scheme of things, not a terribly 
important provision of this bill.
  But we have satisfied the critics of the bill on the question of 
supermandate. That was always the hot button in this bill. The House 
bill has a supermandate; that is, under the House bill, you can change 
existing standards under existing law. Expressly, they override 
existing law.
  Mr. President, we have made it clear--expressly, explicitly clear--
that there is no supermandate in this bill. We have straightened out 
the judicial review provisions, so there is no independent review of 
the procedures as opposed to the final agency action.
  We have passed the threshold of $100 million, the threshold that 
Senators so insisted upon. It is done. It is in the bill. It is passed.
  We have straightened out the petition process so that there is one 
opportunity to get on the list for review, if you were left off. It is 
180 days in length. And, if you miss that 180-day window, then you are 
foreclosed for a full 5 years.
  The appeal from that provision is consolidated. So that the former 
criticism of the Dole bill, the original Dole bill, which was that 
there would be this multiplicity of appeals, is simply not here on this 
bill. There is one consolidated appeal. It will not overload agencies 
or their legal staffs. There will be simply one appeal and one 
rulemaking action with respect to the schedule.
  We have dealt with the effective date, so that those ongoing rules, 
which have been in the making for, in some cases, 2 and 3 years, will 
not be subject to either cost-benefit or to risk assessment. They do 
not have to do it. They are exempted totally. In fact, all rules are 
exempted from cost-benefit or 

[[Page S 10108]]
from risk assessment, if the original notice of proposed rulemaking was 
filed on or before April 1st, 1995. If it was filed after that, they 
have ample opportunity to do what the law requires.
  Mr. President, we won the fight on Superfund. Superfund environmental 
activities are now out of this bill. And we have passed the Glenn 
sunshine amendment.
  What we have not done is to go along with what the Glenn-Chafee 
amendment now requires, which is to throw out any requirements and to 
make this bill completely consensual, because the Glenn-Chafee 
substitute is sham reform. If you do not want to have cost-benefit 
analysis, if you do not want to have risk assessment, then vote for the 
Glenn-Chafee amendment because it is all consensual. If an agency head 
wants to do it in his or her sole discretion, then vote to put it in 
their sole discretion. There is no judicial review. There is no 
requirement. And you can be sure it will not be done.
  It will be business as usual if you vote for the Glenn-Chafee 
amendment. There is no requirement of meeting a test that the benefits 
justify the cost. Oh, to be sure, you must state whether the benefits 
justify the costs, but you do not have to meet that test. You just give 
the information and go merrily on your way and nobody can question you.
  Mr. President, the Dole-Johnston amendment is a workable, logical, 
scientifically sound set of requirements that will put agencies of this 
Federal Government to a rigorous set of logical steps so that we can 
avoid what we have under the present law, which is regulations not 
based on science, not based on real risks, but, as EPA said in 1987 in 
their own study, that systematically they rate risk according to what 
the public thinks about those risks as opposed to what the scientists 
think about those risks. That is a 1987 study by EPA, not some industry 
group, not some right-wing think tank, but EPA's own study, which said 
in 1987 in their publication entitled ``Unfinished Business,'' that 
their estimations of risk were wrong.
  In 1990, EPA's own Science Advisory Board made a new study of the old 
study. They made a new study to determine whether the old study was 
correct. And they stated that the 1987 study was correct; that is, EPA 
has not been using science or the proper estimation of risks.
  To bring science into the proposition is not to erode health 
standards. It is not to allow E. coli in meat. It is not to make people 
less safe. To the contrary, the way we determine whether someone is at 
risk in the health, safety, or the environment is by a scientific 
evaluation. You do not decide what to do on a health standard by 
consulting some soothsayer or some pollster or some political 
operative. You determine what meets a standard of health by looking at 
the best science available. That is what we do in this bill. We require 
the best science available--not the best politics, not the best 
bureaucrat, not the pressure group with the most members, not the one 
that can make the most noise, not the one that can meet the most people 
at a public meeting, but the best science available. And we require 
them to justify the cost--not to get the cheapest, not to get the least 
cost, but to get that which satisfies the requirement of health, 
safety, or the environment, and satisfies the uncertainties of science 
or data.
  Mr. President, the Dole-Johnston bill is a tightly drawn bill which 
serves the public well. I hope my colleagues will endorse that bill 
today and vote cloture.
  Mr. President, I yield the floor.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Mr. President, I have listened for some long while to 
this debate and participated during previous days in this debate on 
regulatory reform.
  I must say that in the early stages of this debate, it was beyond 
boring. I mean there are boring debates and then there are boring 
debates that are well beyond the definition of boring. I suppose the 
reason for that is because the language of this legislation--and also, 
in some respects, the language of the debate itself--is technical and 
so arcane and so terribly difficult to understand. I suspect for that 
reason it has not been very interesting.
  Yet the debate itself about regulatory reform, or what kind of 
regulations we ought to have in this country, is a debate that will 
affect every single American. It is very important, especially this 
debate as it relates to the safety of what we eat and drink and 
breathe. It relates to the controversy that we have had now for a 
couple of decades over how we do things in this country.
  It was not too many years ago that we did not care much about 
environmentalism or about environmental concerns. The issue was if you 
are going to produce widgets or you are going to manufacture widgets, 
you get yourself a manufacturing plant and you start manufacturing 
widgets, whatever they are, and you can dump the pollution into the 
airshed; you can drop your raw chemicals into the waters and streams 
and lakes. It just did not matter because you were providing jobs and 
producing widgets. And, of course, what you were doing was passing the 
costs of this manufacturing down the road to someone else who someday 
would be required to clean up the air and those streams and rivers and 
lakes.
  About 20 or 30 years ago, the people in this country started asking a 
question: Would it not make more sense for us to stop spoiling this 
place in which we live by requiring those who produce and those who do 
certain things to do it without despoiling the air or the water? Would 
that not make more sense? And, of course, those who were producing, 
those who wanted to dump chemicals and effluents and pollution into the 
air, and those who dumped chemicals into the water, did not want to 
change the way they did business. Frankly, it was costly to change the 
way they did business.
  I have told my colleagues before; I grew up in a town of about 300 to 
400 people, which is a small town, in North Dakota. When I was a young 
boy, my father ran a service station and farm implement dealership, and 
part of what was done in that service station was people would drive in 
and we would change the oil in their cars. After we had changed the 
oil--we would take the nut out of the crankcase and drain their 
crankcase of the used oil--it would go into a barrel, and when the 
barrel was full, the barrel was poured into a large tank. And when the 
tank was full of all of this used oil, we would hook the tank up to a 
little co-op tractor and drive up and down Main Street of Regent, ND. 
We had a pipe on the back of that tank with little drip valves on it, 
and we would drip that used oil all up and down the Main Street of my 
hometown.
  Why did we do that? Because my hometown did not have paved streets, 
and it was a wonderful thing that the Farmers Union Oil Co. did for 
Regent. And for that matter, it was a wonderful thing the Regent Garage 
did for Regent. Every so often, when they had enough used oil in their 
tank, they hooked it behind the tractor and drove up and down Main 
Street and dripped that oil on Main Street to keep the dust down.
  That was an old-time version of blacktop, I guess, just drip used oil 
on Main Street to keep the dust down. Of course, if you caught someone 
today riding a little co-op tractor dripping a barrel of used oil on 
Main Street of Regent, ND, someone would soon have them on the way to a 
penitentiary someplace because that is a very serious violation of 
Federal law and State law. You cannot decide to drop oil on the main 
street of a town in order to hold the dust down as we did because we 
understand now, many decades later, we were contaminating and polluting 
and ruining our water supply. It was not the right thing to do. We did 
not know it at the time; we thought we were doing a good thing at the 
time. The people of my hometown thought it was wonderful. But we were 
polluting the water supply, contaminating groundwater.
  So we have rules and regulations that say you cannot do that. If you 
are going to take used oil out of cars, you are going to have to figure 
out a way of disposing of that used oil without ruining our water 
supply--a fairly simple requirement except it costs money. It is a pain 
for somebody who is changing oil in cars to have to figure out what to 
do with that used oil. It costs money to 

[[Page S 10109]]
deal with that used oil in the right way.
  Well, is it reasonable to require that we not dump that on the 
streets or dump it in a ditch someplace? Yes, that is reasonable. And 
it is a cost that then is passed on with the cost of doing business.
  In a much larger way, we have had that same debate with respect to 
air pollution. In the 1970's in North Dakota, there was a decision that 
we were going to use a lot more lignite coal. We are part of the Fort 
Union Basin, which has the largest lignite coal deposits in the world. 
In order to produce electricity to fuel Minneapolis, using lignite coal 
from North Dakota out there in the prairies, they wanted to build large 
coal-fired generators to burn that coal and produce electricity. The 
problem with that was that North Dakota was to host this lignite coal 
burning. If you are going to burn lignite coal to ship electricity to 
Minneapolis-St. Paul, for example, so they can have heat in the winter 
and air conditioning in the summer, do we want air pollution in our 
airshed in North Dakota as a result of doing that? The answer is no.
  So in the 1970's, I and two or three other fellows led at the time a 
fight in North Dakota to say if you are going to build coal generating 
plants in North Dakota, you are going to do it right. In other words, 
you are going to be required to use the latest available technology 
with respect to your stacks, and the effluence or emissions that come 
from those coal-fired generating plants have to be reduced by using the 
latest available technology; in other words, wet scrubbers on those 
stacks to clean the air. Expensive? You bet. Very expensive. Was it the 
right thing? Well, 20 years later, I can tell you I am proud of having 
been involved in that fight and proud of having been in a group that 
won that fight in North Dakota because, yes, we burn a lot of lignite 
coal. I am pleased that we do. But it is burned in plants that have wet 
scrubbers and the latest available technology to prevent the kind of 
pollution we would have had.
  The result is that North Dakota met the clean air standards. We still 
have a good airshed, largely because we fought the fight and said you 
are required to do this the right way. That was a regulation, a 
requirement. Was it a pain for somebody? Was it costly? Yes, it was. 
But it was the right thing, as well. Had we not done that, we would 
have produced power and sent it east somewhere and we would have been 
stuck with dirty air in North Dakota. It is not the right way to do 
things.
  Now, the issue with respect to this matter in this Chamber is an 
issue, it seems to me, of what is reasonable. Some call this regulatory 
reform. Others call it regulatory rollback. I happen to believe there 
are a lot of silly, unnecessary, and unreasonable Federal rules and 
regulations, and we ought to get rid of them and the people who write 
them. There is no excuse for that. But we ought to deal with facts, not 
fiction.
  It is interesting, in the book The ``Death of Common Sense,'' among 
other things, it is said a dentist is now prevented from extracting a 
tooth, a child's tooth, and giving the tooth to the child. I thought to 
myself when I read that, what on Earth is happening? Who would write a 
rule like that? Well, I looked into it. It turns out it is not true--a 
great story, but it just is not true.
  There is a host of those kinds of myths that gain life because 
someone said it in an anecdote that turns out to be just not true. In 
fact, there are a dozen or so that have been used in the Chamber, which 
I am going to come and describe, and most of those dozen are not true 
either. I will do that in a subsequent presentation. It is one thing if 
we are dealing with fact. It is another thing if we are not dealing 
with the truth.
  One of the issues that has been raised in the Chamber as silly 
regulations, we are told, is that a worker cannot wear a beard. In 
fact, I think it was on Senator Hatch's top 10 list, No. 9. It says 
forcing a man to choose between his religion and his job because rules 
do not allow workers to wear a mask over a beard. A stupid rule, 
Senator Hatch alleged.
  Well, I looked into that to try to understand: Is that the case? The 
Government, at least to the extent that I have been able to find--and 
maybe someone will correct this--never forces workers to choose between 
their safety and their religious beliefs about wearing beards.
  There are some businesses that do that, that require their male 
employees to be clean shaven. This actually deals with the question of 
respirators, which prevent workers from breathing in harmful substances 
such as asbestos, lead, or toxic chemicals, and apparently about 2.6 
million American workers do wear respirators. One kind of respirator 
does not work if you wear a beard, because you do not get a good seal 
around your mouth.
  But a better respirator can work even if you wear a beard. And if you 
use environmental engineering controls, to stop workers from breathing 
in these toxic substances in the first place, you do not need to wear a 
respirator at all.
  So the fact is the Government does not force workers to choose 
between their safety and their religious beliefs about wearing beards.
  Here is another one. An elderly woman cannot plant a rose garden. No. 
3 on the top 10 list of silly regulations. We do not have any idea 
where that comes from. The suggestion, I guess, is that section 404 of 
the Clean Water Act is preventing someone from gardening as they 
wished. As we understand it, the story turns out to be almost entirely 
apocryphal. A number of people have tried to get the facts on this 
silly regulation, or alleged regulation.
  It first appeared in 1991, I understand. It was alleged it happened 
to a woman in Louisiana. And then when retold, apparently it happened 
to a woman in South Carolina. And then retold again, it turns out it 
was probably a woman in Georgia. The Heritage Foundation said that this 
was a woman in Wyoming. Well, the Army Corps of Engineers has never 
been able to determine where this story might have come from.
  Perhaps if Senator Hatch, or others, might tell us who this happened 
to and give us some details, we can verify whether this is actually the 
case. At least those who have tried to verify this say the allegation 
that an elderly woman was prevented from planting a bed of roses on her 
own land is simply not the case, simply not true. There are no facts to 
support it.
  There are a whole series of these myths.
  No. 4 that was offered in a chart, Senator Hatch's list of top 10 
silly regulations, was failing to approve a potentially lifesaving 
drug, thus forcing a terminal cancer patient to go across the border to 
Mexico to have it administered.
  Now, I want to note that we have provisions of the Federal Food, Drug 
and Cosmetic Act in this country that do relate to the question of what 
drugs patients who are terminally ill may use.
  First, since 1968, the FDA has had what is called a ``compassionate 
use policy,'' to permit the use of a drug that is still being tested if 
there is no other drug available for the condition. Second, the FDA may 
make promising drugs that are still under investigation available to 
terminally ill patients before the drugs go on the general market. 
Third, FDA now has a new fast-track procedure to speed approval of new 
drugs for serious or life-threatening illnesses.
  I understand that there are some concerns about the speed or the pace 
with which the FDA acts. It seems to me that the Congress and the FDA 
have tried to address this issue.
  You know, the FDA has had an interesting history in this country. 
They have been careful, it is true. A recent study showed that 56 drugs 
have been removed from the market in the United States, Great Britain, 
France, and Germany since 1970. In other words, drugs have been removed 
from the market 56 times. Of these, only nine removals occurred in the 
United States. Why? Because the drugs that were removed from British, 
French and German markets were not approved by the FDA.
  Mr. JOHNSTON. I wonder if the Senator will yield.
  Mr. DORGAN. I will be happy to yield.
  Mr. JOHNSTON. The Senator has been talking about the list of the top 
10 worst regulations. Frankly, I have not paid too much attention to 
those anecdotal sort of things. Is the Senator aware that EPA did a 
study of its own 

[[Page S 10110]]
regulations in 1987 called ``Unfinished Business: A Comparative 
Assessment of Environmental Problems,'' and that they concluded that 
their own estimation of risk did not comport with scientific risk, but 
rather with the public opinion about those risks? Is the Senator aware 
that was EPA's own evaluation of its own regulations?
  Mr. DORGAN. I am familiar with the study, but I have not had the 
opportunity to review it in detail.
  Mr. JOHNSTON. I have a copy of it here. I wonder if the Senator is 
aware that in 1990, the Science Advisory Board did a study of that and, 
in effect, concluded that the first study was correct; that is, that it 
did not comport with scientific evaluation of those risks, but rather 
with public perception of those risks. The Senator was not aware of 
that?
  Mr. DORGAN. Again, I have not examined the results of that study in 
depth.
  However, I do not think the Senator would use either study to 
demonstrate a conclusion that the central thesis of what I am talking 
about, the Clean Air Act, the Clean Water Act and a whole range of 
other health, safety and environmental standards, are somehow not 
grounded in science or not grounded in fact. I think the Senator would 
not be correct if he says the bulk of what we do to make sure our water 
is safe, to make sure our air is clean, to make sure drugs are tested 
and safe, the bulk of what we do is inappropriate. The Senator would 
not be making that case, would he?
  Mr. JOHNSTON. Absolutely not. As a matter of fact, we have 
specifically stated that all of those laws to which the Senator refers 
will not be changed in any way, will not be overridden. I thought it 
was clear in the original Dole-Johnston bill, and we have had a lot of 
debate here, as the Senator knows, about the question of whether it was 
clear. We accepted the amendment that made it doubly clear; that is, 
that each one of those laws will remain in full force and effect, all 
the standards will be there.
  What we are dealing with here is rules. When you take those laws and 
translate them into rules, what we are saying is that you must look at 
those laws through the lens of sound science and proper risk 
assessment, rather than public opinion, politics, emotion, prejudice, 
superstition--whatever. We are saying translate those good laws, which 
protect public health and safety, but do it in a rigorously logical and 
scientifically appropriate way. Would you agree with that?
  Mr. DORGAN. Well, as the Senator states that principle, I have no 
substantial disagreement with him. However, the Senator understands 
very well what is at work with respect to this body of change and 
reform. The Senator is perhaps familiar with the stories of the bill 
that is similar to this one--though not identical--the regulatory 
reform bill that went through the House of Representatives?
  Mr. JOHNSTON. It differs with this bill as night does day.
  Mr. DORGAN. Perhaps. My point is with respect to the regulatory 
reform agenda, I know the Senator has read the accounts and probably 
verified them in discussing them with our colleagues that the bill in 
the House of Representatives was actually written by a bunch of 
lobbyists sitting in a room saying, ``This is what we need to have 
happen.''
  I guarantee you this--I just guarantee because I have been in these 
fights in North Dakota for a long time, with respect to air pollution 
and other matters. The corporate system is interested in profit, and 
they should be because they are responsible to their stockholders. When 
they sit around and propose regulatory reform legislation, they are 
designing to find ways to weaken the Clear Air Act, the Clean Water Act 
and a whole series of regulatory standards. That is simply the way it 
works. I think that is unfortunate, but they have every right to try to 
do that. I want to make sure we get rid of the silly and the outrageous 
regulations--and there are some--but I want to keep the foundation of 
what we have done.
  Is the Senator aware of this: I wonder if the Senator is aware--
likely, because I think he is one of the best in the Senate on the 
issue of energy and related issues--that in the last 20 years, we have 
nearly doubled the amount of energy we use, and yet the airshed in 
America is cleaner than it was 20 years ago?
  Mr. JOHNSTON. Absolutely.
  Mr. DORGAN. If the Senator is aware of that, the Senator, I think, 
would agree with me that is not because the captains of American 
industry said, ``We ought to invest our money to clean the air.'' It is 
because Congress decided to do something. We decided to say to people, 
``When you produce, part of the cost of the production is the 
requirement not to pollute America's air.''
  Mr. JOHNSTON. And that is why we have every single provision of that 
Clean Air Act unchanged, not overridden, and the full force and effect 
if this bill passes.
  Did the Senator know the original risk assessment was proposed by a 
Democrat, namely me, and passed overwhelmingly here?
  Mr. DORGAN. In the last session of Congress, absolutely.
  Mr. JOHNSTON. I do not know what happened in the House, whether or 
not lobbyists were involved in it. That is irrelevant to this bill. We 
took the original Dole bill which came out of committee, which, in 
turn, differed from the House bill, and made over 100 changes, 
including all of those I talked about. So I do not know how it started 
or how it changed or how the House did it or what the Louisiana 
Legislature did. I am telling you what is before the Senate now, which 
is the relevant thing, and what is before the Senate now is a tough 
bill which incorporates all of those good provisions for clean air and 
water that the Senator speaks about.
  Mr. DORGAN. I appreciate the Senator's participation. I have great 
respect for Senator Johnston.
  Let me finish what I was trying to say.
  Mr. LEVIN. While the Senator is yielding, if the Senator will yield 
for an additional question.
  Mr. DORGAN. Yes, I yield.
  Mr. LEVIN. The Senator from Louisiana asked if the Senator was 
familiar with a number of documents, and there is a third document I 
would like to refer to, which is the March 1995 report, later than the 
two documents to which the Senator from Louisiana referred.
  In the 1994 report of the National Academy of Sciences--that report 
entitled ``Science and Judgment in Risk Assessment''--they made a 
number of specific recommendations to the EPA where they might improve 
policies, practices, and methods of risk assessment, but also concluded 
the following:

       EPA's approach to assessing risks is fundamentally sound, 
     despite often-heard criticisms.

  I ask this question of my friend--as to when the Senator was 
reviewing the two earlier documents of the Senator from Louisiana--
whether he might also add to that reading list the 1994 report of the 
National Academy of Sciences?
  Mr. DORGAN. I would be happy to add that report to the list of 
reports I should review. I have heard the Senator from Louisiana refer 
to his two in previous debate. I doubt whether the conclusion one can 
reach from them is that you have a bunch of folks proposing regulations 
on unscientific basis. Let us think about the facts here.
  The fact is we use twice as much energy now and have cleaner air. Why 
is that? Because we have clean air regulations that do not work? Of 
course not. They have succeeded. One of the things we at least ought to 
take credit for is having marched in the right direction. I think the 
Senator from Louisiana would not contest that. He is making the case, 
yes, that is probably true, but we are not interfering with that.
  So let us understand that what has been done in the name of 
regulation, in many instances, has been awfully good for this country. 
We now have started to clean up America's airshed. I think a lot of the 
kids and families would say thanks for that. That is the right thing. 
We want to live in a healthier place. My sense is that if you ask folks 
out there: Do you think that the food safety standards in this country 
make sense? Would you sooner go into a restaurant and order a side of 
beef--not that the Senator from Louisiana would eat a whole side of 
beef at one sitting--but would you like to see on that side of beef one 
of those big stamps that says ``USDA inspected,'' or would you 

[[Page S 10111]]
like to see that it has a little stamp that says, ``This side of beef 
was inspected by Sid and Arnie's Meatpackers Co.''?
  Well, look, I think what we have done for food safety has made a lot 
of sense in this country. I will not tell the stories about bread and 
rat poison and meat going down the same holes in the 1900's before we 
decided to have meat safety standards.
  Mr. JOHNSTON. The answer is, of course, I want that ``USDA 
inspected'' label on there, and I want scientists to make that 
inspection based on scientific standards and not on some public opinion 
poll or some prejudice or some superstition. Put good science in the 
picture. That is all we are saying. I want the inspections to continue, 
but with good science. That is what we are about. You know, it is the 
scientists who discovered E. coli, not some pollster out there reading 
the results of the last election.
  Mr. DORGAN. The Senator knows what has happened with E. coli in the 
last couple of days. He has read the reports about outbreaks in three 
or five States in recent days. We are now going to be talking, one of 
these days--I hope seriously--about inspection of fish and seafood. 
That is now voluntary in this country, and it ought not be. When we get 
to that point, I wonder whether we will be as aggressive and interested 
in making sure that that inspection is the equivalent of other flesh 
food and that we will have the same kind of assurance for the American 
consumer that they are buying fish and seafood that is healthy and 
wholesome.
  I happen to think that in some areas regulations make sense. I do not 
think the Senator from Louisiana disagrees with that. But we have been 
in this circle here where if somebody holds up a silly regulation, I 
guarantee you--and I know we are not debating the House bill--that that 
bill was written by the people who want to get out from under the cost 
of regulations. People used silly examples then to demonstrate the 
rule. Well, even if the exception is true, it does not demonstrate the 
rule.
  We are always debating things the Government is spending. Somebody 
might say, gee, ``Did you know somebody in a research is studying the 
sex life of a screw worm?'' Yes, they study that with public dollars. 
Why? They did that to save the beef industry in this country. And they 
did. I cannot even describe to you the cost-benefit ratio of that work. 
But someone can make fun of that, I suppose, or the fact that somebody 
was sitting in a laboratory with dark glasses studying molds and 
discovered penicillin. You can go on forever.
  With respect to regulations, we go through the same kind of 
situation. Someone holds up a silly one--and there are some--and says, 
``This demonstrates the rule.''
  I am going to support the Glenn-Chafee regulatory reform substitute 
because I think it moves in the right direction. It is substantial 
reform. It requires agencies to show that benefits justify the costs, 
but it does not allow the cost estimates to control, just singularly--
--
  Mr. JOHNSTON. If the Senator will yield, I submit to the Senator the 
Glenn-Chafee bill does not make such a requirement. It makes a 
requirement of stating whether the benefits justify the cost. But it is 
no longer a decisional criterion. You state it, but you do not have to 
comply with it. That is the point.
  Mr. DORGAN. I will yield soon, but I say that my understanding of the 
Glenn-Chafee substitute is that it requires that the agency use a cost-
effectiveness standard, and the cost effectiveness standard, in looking 
at which regulatory scheme or approach to use, is substantially 
different than what I believe your proposal would require, which is the 
least-cost standard. You might find a standard that is the least cost 
but is less appropriate than the most cost-effective standard. That is 
how I view the differences in these proposals.
  I yield to the Senator from Michigan.
  Mr. LEVIN. The Senator has pointed exactly to one of the major 
differences in the two bills, which is the requirement in the Johnston 
bill that you go with least cost, unless there is a certain 
nonquantifiable benefit. But if the benefits are quantifiable--which 
they are in many instances--you are forced to go with the least cost, 
even though a slightly larger cost would produce a major additional 
benefit.
  So the Senator is exactly right on that. On the question of whether 
or not cost-benefit analyses were required in the Glenn-Chafee 
substitute, it is required. It is right here on page 29, line 14. I am 
going to read the language because it is required, but if it cannot be 
given, then the agency must say why, in fact, the certification that 
the benefits justify the cost cannot be made, because there are 
instances where an agency cannot make that certification. This is the 
language:

       The agency must certify that the rule will produce benefits 
     that will justify the cost to the Government and to the 
     public of implementation of and compliance with the rule, or 
     an explanation of why such certification cannot be made.

  And in addition to requiring that that certification be given, the 
Glenn-Chafee approach is that Congress is then put in the position 
where, if such a certification is not or cannot be made, then it will 
or can veto such a regulation. We are put in the position, because of 
the expedited process here, for Congress to review regulations, and 
where the benefits do not justify the costs or any other regulation, we 
are accountable.
  Finally, there is some accountability in the elected officials of 
this land for the regulations which people might think are burdensome. 
We are not going to be able to hide behind the regulators under Glenn-
Chafee. We have here legislative veto.
  So in the event an agency cannot certify that the benefits justify 
the cost, someone can come to us--a constituent can come to us and say, 
hey, look at this cost-benefit analysis. They are producing here 
something which costs $1 billion and only produced one-half billion 
dollars in benefits. We want you to veto that because it does not make 
sense. We are not going to have any excuses--no more excuses, no more 
hiding behind regulatory agencies. So there are significant differences 
between the two bills, but they are not both regulatory reform, and 
cost-benefit is required in both bills. The difference is what happens 
when an agency cannot certify, or should certify, that the benefits 
justify the cost under Glenn-Chafee. We then take the position as to 
what should happen.
  Mr. DORGAN. Mr. President, I know that others want to speak. Let me 
make two final points on this subject. I appreciate the comments of the 
Senator from Michigan.
  It is very hard, it seems to me, for anyone to talk much about 
success. Failure is what sells. Scandal sells. Success is largely 
boring.
  You know, Gregg Easterbrook has recently published a book about the 
circumstances we face in this country with our air and our water. He 
points out something most Americans probably do not know, that our air 
is cleaner now than 20 years ago. Is it perfect? No. Are we moving in 
the right direction? Yes. Our water is cleaner now than it was 20 years 
ago. Our lakes, rivers, and streams are cleaner than 20, 25 years ago.
  Think back 20 or 25 years ago. Most people foresaw an era ahead of 
gloom and doom. That seemed to be where we were headed--more pollution, 
more use of energy, and more pollution of our air, of our water. And 
they figured that we were consigned to do that. It was inevitable, they 
thought, because we could not control it.
  Congress decided we wanted to do something about it, and we passed 
legislation and said we have to change the way we do business. Yes, it 
is costly. Yes, it is probably a pain to do that. But we insist it is a 
cost of doing business, to keep America's airshed clean, to clean up 
our rivers and streams.
  Mr. President, 20 years later we can stand on the floor of the Senate 
and debate regulations and talk about the fact that we changed the 
direction this country was headed in. How? By regulations, by laws that 
say we demand this country change the way it is moving.
  Now, I happen to think that is wonderful. We should claim a little 
success in areas where we have made progress.
  Those who are elected to Congress under a regime of reform or change, 
who come here thinking they ought to change what is successful, in my 
judgment, jumped on the wrong wagon on the way to town.
  We ought not be reforming something that is working and moving us in 

[[Page S 10112]]
  the right direction. If anyone believes that the direction of the 
regulatory reform bills in the House and some that have been proposed 
here would weaken the fundamental structure of our attempt to clean our 
air and clean our water and keep our food safe, it seems to me the 
choice is pretty clear. The choice is to support the Glenn-Chafee bill, 
which does reform our scheme of regulations in a sound and a practical 
way but does not jeopardize what we have accomplished in this country.
  When I began this presentation, to those who took umbrage when I said 
this debate is beyond boring, and for those who have participated in 
it, I do not mean this personally. I say it is beyond boring because 
most of it is so fundamentally arcane and technical and hard to 
understand, but it will affect the life of every American citizen. It 
might be boring, but it is critically important.
  If we strip the peeling off, we are talking at the roots, yes, about 
E. coli; yes, about mammograms. We are talking about health, safety, 
clean air, clean water, and that affects every single American. That is 
why this debate is important. It is why it is important we get it 
right.
  Finally, it is why it is important we not decide to be champions of 
change in areas where we are successful. That makes no sense.
  That is why I come here supporting the Glenn-Chafee bill, the 
substitute, and hope that we will not invoke cloture late today, and 
instead decide to embrace the Glenn-Chafee regulatory reform 
substitute. I yield the floor.
  Mr. BOND. Mr. President, I thank the Chair. I rise to support S. 343, 
the Comprehensive Regulatory Reform Act of 1995, and in strong 
opposition to the amendment offered by our friends, the Senators from 
Ohio and Rhode Island.
  Let Members know at the outset that the Dole-Johnston substitute is 
not a regulatory repeal act. It is not a regulatory prohibition act. It 
is, in fact, a strong, regulatory reform act.
  It reforms the way Government regulations are issued, with three 
goals in mind: First, to bring accountability to the bureaucrats 
writing the regulation and, just as importantly, to those in Congress, 
who, after all, write the laws that generate those regulations; second, 
it attempts to bring a little common sense to the regulations that are 
issued; third, it brings a little more honesty to the way we talk about 
what we are regulating and why some truth in regulating is necessary.
  I am afraid that the Glenn-Chafee amendment comes up short when 
measured by these criteria. This is an effort to go back to the status 
quo. It will ensure we stay where we are. It would fail to ensure that 
Government agencies obey the law and follow common sense like the rest 
of Americans have to do.
  If the Glenn-Chafee amendment were to be adopted, we might as well do 
nothing--for that is, in fact, what will happen. There will be no 
change. Same old 6's and 7's, the same old way we have been doing 
things.
  It is my contention that we simply cannot afford to do nothing. We 
cannot accept the status quo. Regulations are like water: Too little 
and you cannot live; too much and you drown. In our crowded society, 
there is no question that regulations are needed to help make our 
communities a better place.
  As has been pointed out at length in the recent discussions on this 
floor, over the last 25 years, environmental regulations have helped 
ensure that the air we breathe is cleaner, the water we drink is safer, 
and the rivers we fish and play in are increasingly less polluted.
  Workplace regulations have made our jobs safer. One would think from 
listening to the recent debate that we were going to change all that. 
That is not the point.
  Those who argue for 25 years are not being contested. But the 
argument is about here, today, and where we go from here. That is the 
point that has been missed in some of the discussions we have just 
heard.
  In recent years, the fact is that government regulation has risen to 
the level where it is choking off the growth of jobs, the growth of 
economic opportunity and the betterment of the way of life of everyone.
  Just like the waters of the Missouri River that recently rose to 
flood part of my home State of Missouri, we are suffering a flood tide 
of regulation. The Comprehensive Regulatory Reform Act of 1995 will go 
a long way to stop the rising tide of overregulation. When the 
President signs this legislation, as I believe he eventually will, 
because he must, we are going to reduce the burden of government 
regulations below the flood stage so that regulations continue to 
enhance the quality of life, not interfere.
  Now, opponents of this legislation have taken the approach that there 
is no problem with overregulation; regulation is only good. We have 
heard stated how many good things regulation has done. They say, Do not 
worry, be happy; regulatory burdens are all in your imagination. To 
that I say, respectfully, Bunk. Get outside the beltway, ask the people 
who live and work in the rest of America what they think. Ask the 
people who have to comply with the regulations. Ask small businesses.
  I have had the opportunity as chairman of the Small Business 
Committee and as cochair of the Regulatory Relief Task Force to hear 
plenty from people in small business. Last week, I spoke on this floor 
about a series of field hearings the Small Business Committee has held 
around the country. I can say that the Senators who attended those 
hearings had our eyes open to what is going on with small business and 
the cumulative burden of regulations.
  As the Chair well knows, we heard in Memphis from people from all 
different areas of small business how the burdens of government 
regulation were making it impossible for them to continue to bring the 
jobs, to provide the products that were essential, not only to the 
economy, but to the well-being of the people in that area.
  Just last month, I heard the same message from delegates to the White 
House Conference on Small Business. They made it very clear to anyone 
who was willing to listen that excessive overreaching regulations and 
outrageous enforcement zeal are a top priority for the Nation's small 
entrepreneurs who create large numbers of new jobs.
  These delegates came to Washington, took time away from their 
business, spent their money, and devoted resources and effort of 
extraordinary magnitude to speak on behalf of small business.
  They voted on the biggest concerns to small business from a list of 
several hundred proposals, from judicial review of the Regulatory 
Flexibility Act to cost-benefit analysis, to protection for self-
audits, to sunsetting old regulations, to reform of OSHA--the delegates 
sent a clear message to us and to the President. Maybe some people 
stuck inside the beltway do not know that regulations are a big 
problem. But small business knows that it is drowning in a floodtide of 
regulations.
  Mr. President, I ask unanimous consent to have printed at the end of 
my remarks the list of the top 30 concerns as voted on by the delegates 
to the White House Conference on Small Business, so everyone can see 
how important this legislation is to small business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. BOND. I do not believe the delegates to the White House 
conference would want to see this bill weakened by the Glenn-Chafee 
amendment.
  Let us look at environmental regulations as an example of the rising 
cost of regulation. In the past, environmental regulations were based 
on common sense and they have been responsible for giving us a much 
improved quality of life. But increasingly they are now choking off 
American entrepreneurship and producing fewer and fewer benefits.
  I think I understand why this is happening. Because, to me, solving 
our environmental problems is a little like harvesting a Missouri 
soybean field. You can get most of the soybeans quickly and efficiently 
with a modern combine. It is an expensive machine but it is worth the 
cost because it is fast, efficient, gets the soybeans that provides a 
vital food source supply, and it does so in an economical way. We could 
build a superefficient combine, designed to harvest almost every single 
soybean, leaving almost none behind, but it would sure be a lot slower 
and it would undoubtedly be far more expensive. And very few farmers in 
Audrain 

[[Page S 10113]]
County, MO, where I am from, could afford it because it would only get 
a few more soybeans. You could even take that one step farther. You 
could get every last bean, perhaps, if you hired an army of people to 
crawl through the fields on their hands and knees, looking for any 
single bean the machine has missed.
  The point of all this is, simply, there is a diminishing return on 
investment at some point. Sooner or later, you have to say enough is 
enough and move on to another field. When is it that you say enough is 
enough? You say enough is enough when science says that it is enough. 
If there is something truly dangerous, if the gathering of that last 
soybean out of the field has to be done for critically important human 
health, welfare and environmental needs, then yes, let us talk about 
getting that last bean. But when there is no real danger to the 
environment, or to human health, what good is there to pursue 
perfection?
  Environmental regulations work just like that. Initially, our 
regulations were based on common sense and well worth the money we 
spent to reduce pollution. Nobody wants to go back--and nobody is 
talking about going back--to the days of dirty water, dirty air, dirty 
food. We have made great gains in environmental quality and 
significantly reduced pollution at moderate costs.
  But in the last few years, I will tell you, something has gotten out 
of whack. In many areas of environmental protection we have found the 
costs to get those last few molecules of pollution skyrocketed. 
Achieving additional gains is exorbitantly expensive, with more and 
more money being spent on fewer and fewer results. In these areas we 
have reached the point of dramatically diminishing returns.
  If we cannot achieve zero risk--and most scientists I talk to tell me 
that nature and this world is not a zero risk environment--does this 
mean we should stop writing regulations to protect our health and 
environment? No. Not at all. It simply means we cannot afford to 
regulate unwisely, as if we were going to achieve a zero risk, absolute 
perfection ideal, without regard to costs.
  The current effort before us today in this body is to pass regulatory 
reform. Foremost, it is to ensure that regulation is done wisely. Those 
of us who are pushing for reform believe that knowledge, scientific 
knowledge and common sense, are important parts of wisdom. If we are 
going to spend $160 billion on the environment, we think everyone 
should get a better understanding of what kinds of risks we are 
protecting against, the benefits of specific regulations and the cost 
of those regulations.
  The real tragedy of this is that our desire for perfection will 
bankrupt us and divert our efforts away from more significant risks. 
Every day of every year, real people die because we have misallocated 
our resources. One study conducted at the Harvard Center for Risk 
Analysis has shown that if EPA did a better job of prioritizing the 
resources consumed by a sample of 90 average regulations, 1,200 
needless deaths would be avoided. That is just 90 rules at just 1 
agency.
  Across the Government, this same study showed that by using common 
sense and getting the most bang for the buck, we could save tens of 
thousands of additional people every year without imposing any 
additional cost on our cities or businesses. These are the real victims 
of the status quo. The complaints of how this bill might lead to 
someone being exposed to some increased theoretical risk pale in 
comparison to the deaths that occur every day because we have spent our 
resources responding to the latest media scare instead of basing our 
decisions on sound science and cost-benefit analysis.
  Those on the other side who are exposed to regulatory reform--there 
are some who are opposed to any kind of regulatory reform, they like it 
just the way it is--like to trout out the phoney scare stories of the 
victims of E. coli food poisoning. They know that this bill contains 
clear safeguards for regulations that protect us from food poisoning. 
But the other side does not say much about those who are inquired or 
killed every year because we waste resources on trival risks, instead 
of focusing on the real health and safety risks. These are the victims 
who are left with no hope if the Glenn-Chafee amendment passes.
  The Dole-Johnston substitute has three simple goals: we want 
Government regulators and the Congress to be more accountable for their 
actions. We want Government regulators to be honest. And we want them 
to use a little common sense.
  Central to increased accountability are the congressional review and 
tailored judicial review provisions of this bill.
  Judicial review of the Regulatory Flexibility Act was the third 
highest vote-getter at a recent White House conference. Let me take 
just a moment to explain why this is important.
  The Regulatory Flexibility Act, for those who are not familiar with 
the terminology, refers to a measure passed in 1980 by Congress. It was 
supposed to give a break to small business by telling agencies that 
they had to be flexible in passing regulations that deal with small 
business. They were supposed to conduct a regulatory flexibility 
analysis to see if there are other ways of getting the same job done if 
it affected small business.
  Unfortunately, the problem was that Congress in its wisdom--and I 
apologize for the oxymoron--struck any kind of judicial enforcement out 
of the Regulatory Flexibility Act. So what happened? Every time the 
Advocacy Council and the SBA went to another agency and said, ``You did 
not comply with the Reg Flex Act,'' or a small business went in and 
said ``You did not comply with the Reg Flex Act,'' the answer in too 
many cases was, ``Tough. There is nothing you can do about it.''
  There we see the provisions of the Glenn-Chafee amendment making 
judicial review almost ineffective, totally ineffective in many 
instances, if there is only a show of cost-benefit analysis. We do not 
want to make that same mistake again. We put in an appropriate judicial 
review for reg flex, and on decisions such as cost-benefit analysis.
  The judicial review provisions of S. 343 will provide a much-needed 
check on the actions of agencies, without subjecting rules to judicial 
scrutiny of minute procedural steps. This provision strikes the right 
balance between accountability and a desire not to clog up Federal 
courts.
  The bill provides for greater congressional accountability by 
including the provisions of the Nickles-Reid Congressional Review Act 
passed by the Senate 100 to 0. There are two important changes. First, 
the period for congressional review is extended from 45 to 60 days. 
Second, the threshold for rules whose effectiveness is delayed during 
the congressional review period is tied to the overall definition of a 
major rule.
  The second goal of the bill is more honesty in the pronouncements of 
the Federal Government. S. 343 would for the first time require Federal 
agencies, not only to tell us what they know, but also to tell us what 
they do not know, when it comes to assessing risks. EPA would no longer 
be able to hide the ball from the public in their analysis of 
regulations. From now on, Federal agencies will have to come clean on 
the assumptions they make and the quality of the science they use in 
making regulatory decisions. This is a provision that ought to be 
called truth in regulating legislation. I expect and hope that as a 
result of this legislation, many so-called risks that EPA tries to 
regulate will turn out--like the alar scare--to be based more on fear 
than fact. After passage of this legislation, if sound science 
indicates that a significant risk needs to be addressed, then, of 
course, we must support sensible and cost-effective regulations. That 
is what this is all about, making sure that we get regulations focused 
on the design to get rid of those risks.
  This bill is also about a return to common sense in regulating. 
Federal agencies spend too much time focusing on the small risks and 
not enough time on the big risks. This legislation would go a long way 
toward fixing that. This bill directs agencies to set priorities with 
the goal of achieving the greatest net reduction in risk with the 
public and private sector resource expended, and to incorporate those 
priorities in the agency budget, regulatory agenda, and enforcement and 
research activities. As I mentioned last week, over the last several 
years in the Appropriations Committee, the ranking member 

[[Page S 10114]]
on the HUD-VA Subcommittee, Senator Mikulski, and I, have been pushing 
agencies to use comparative risk assessments to prioritize their 
budgets to focus on the biggest risks. The National Academy of Public 
Administration recently released a report to the Committee on the EPA 
entitled ``Setting Priorities and Getting Results.'' One of its top 
recommendations was to ``Use comparative risk analysis to inform the 
selection of priorities and the development of specific program 
strategies.'' It only makes sense that agencies use their resources to 
tackle the worst problems facing the country. Sound like common sense, 
but the sad fact is that is not what's happening today.
  The bill includes an additional way to bring some common sense to 
regulatory decisions--cost-benefit analysis. The basic idea is a simple 
one. We should spend more resources and effort on big problems and less 
on small problems--that is cost-benefit analysis, that is what is so 
scary to the opponents of this bill. We say that in meeting the 
requirements of existing laws, Government agencies should pick a 
regulatory solution with costs that are justified by the benefits. It 
seems astounding to me--and I think it would to most people in 
America--that today Government regulators write rules for the rest of 
us without an established procedure to evaluate costs and benefits, but 
frankly that is what is happening. And it is even more astounding that 
some people have been using emotional appeals to generate irrational 
fears of this commonsense approach that all of us use in our everyday 
lives.
  Finally, the bill repeals the Delaney clause, one of the worst 
examples of regulation with no basis in sound sciences. Public health 
protections are maintained with a replacement provision that allows 
regulation unless there is only a negligible or insignificant 
foreseeable risk to human health. American farmers will no longer be 
hamstrung from using safe and effective crop protection products simply 
because our technology lets us measure parts per trillion or parts per 
quadrillion.
  We have had testimony before our committee from scientists, including 
the President's own Science Advisory Board, saying the Delaney 
amendment is no longer good science. The Delaney amendment cannot be 
justified in a time and day when we are able to measure the most minute 
parts, parts per trillion or even quadrillion. This is not sound 
science they have told us. It is time to get the Delaney amendment off 
the books.
  Mr. President, the Dole/Johnston substitute will help small business 
that are hamstrung by Government redtape. That is why it has the 
overwhelming support of the small business community, including the 
National Federation of Independent Business, the Small Business 
Legislative Council, National Small Business United, and other small 
business groups.
  I would ask unanimous consent to have printed in the Record at the 
end of my remarks, several letters of support for the bill from these 
small businesses.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. BOND. Mr. President, small business is not alone in its support 
of this bill. The Dole/Johnston substitute will also help the farmer 
who cannot use products that good science shows have no risk to health. 
Small towns will have less to fear from arbitrary pronouncements from 
Washington. I have a letter from the National Association of Towns and 
Townships that has written me in particular support of the language in 
the bill pertaining to the judicial review of the Regulatory 
Flexibility Act. You see, these towns know that for too long, 
Government agencies have ignored the impact of regulations on small and 
rural communities. They are counting on this legislation to force 
Government agencies to obey the law and minimize the impact of 
regulations on small communities.
  The Dole/Johnston substitute will bring some much needed 
accountability to the faceless regulators sitting in their Washington 
office buildings cranking out the stream of new rules. It will also 
bring accountability to Congress, where some of the blame lies for 
those regulations. It brings sunshine and openness to the way the 
Government analyzes and talks about health risk, to give us a more 
honest discussion of the problems facing us.
  Finally, it brings some common sense to the decisions that the 
bureaucrats make. Just like every family in America who looks at the 
costs and benefits of going on vacation or buying a smoke detector, 
Government regulators are going to have to take a hard look at the cost 
and benefits of their actions.
  The claims made by some of the extremist pressure groups that this 
legislation will harm the environment are simply false. By grounding 
our health and safety rules on sound science we can avoid wasting our 
money on phantom risks. By dealing with the worst problems first, and 
spending our resources wisely, this bill will help afford a safer and 
cleaner environment for us and our children.
  In contrast, the Glenn/Chafee amendment ensures that we will continue 
on our present course, the flood waters of regulations will rise ever 
higher and more and more small and large businesses will drown in the 
flood. Make no mistake, a vote for this amendment is a vote against 
small business, a vote against common sense, and ultimately a vote 
against the environment--because unless we reform the way we do 
business we will continue to waste our resources on trivial risks, and 
have nothing left over for the very real health, safety, and 
environmental problems that call for commonsense solutions.
  Mr. President, I yield the floor.
                               Exhibit 1

  FINAL RECOMMENDATIONS--1995 WHITE HOUSE CONFERENCE ON SMALL BUSINESS  
------------------------------------------------------------------------
 Rank                           No./Issue                          Votes
------------------------------------------------------------------------
1.....  224 Independent Contractors.............................    1471
2.....  214 Meals & Entertainment Expense.......................    1444
3.....  183 Regulatory Flexibility Act..........................    1398
4.....  218 Estate Tax Repeal...................................    1385
5.....  87 Health Care Reform...................................    1371
        *63 Superfund Reform....................................   1371*
7.....  91 Pension Reform.......................................    1369
8.....  265 NII/Intellectual Property/SIC Code..................    1358
9.....  51 Environmental Enforcement............................    1342
10....  200 Tort Reform.........................................    1332
11....  121 Association Export Programs.........................    1329
12....  194 Agency Enforcement Reform...........................    1328
13....  406 SBIR/Patient Capital................................    1292
14....  144 Unfair Competition..................................    1285
15....  78 100% Health Care Deduction...........................    1283
16....  5 Pension Investments...................................    1279
17....  9 Bank Lending Incentives...............................    1275
18....  385 Tax Equity..........................................    1258
19....  286 SBA Survival........................................    1249
20....  34 Home Office Deduction................................    1239
21....  129 Export/Import Bank Financing........................    1181
22....  57 Regulatory Takings/Brown Fields......................    1118
23....  115 Intellectual Property Protection....................    1080
24....  242 Capital Gains.......................................    1054
25....  164 Davis-Bacon/Service Contract Act....................    1046
        188 Paperwork & Regulatory Reform.......................    1046
27....  41 Entrepreneurial Education............................    1035
28....  369 OSHA Reform.........................................    1030
29....  24 SCOR.................................................    1027
30....  14 Secondary Market for S.B. Investments................    1009
------------------------------------------------------------------------

                                                                  
                                                                    ____
                               Exhibit 2

                                            National Federation of


                                         Independent Business,

                                    Washington, DC, June 28, 1995.
     Hon. Christopher Bond,
     U.S. Senate,
     Washington, DC.
       Dear Senator Bond: I am writing to support your efforts to 
     insure that the strongest possible judicial review language 
     is included in the Comprehensive Regulatory Reform bill. The 
     promise of regulatory reform will not be fulfilled if the 
     council of the self appointed guardians of bureaucratic 
     baloney is followed regarding amendments to ``reg flex''. 
     Many of those who have criticized the direction you are 
     headed with the Regulatory Flexibility Act and with your 
     reading of how it interacts with the Administrative 
     Procedures Act are only vaguely aware of the purposes or 
     processes of either law. I urge you to hold fast to the 
     course you have set--a course laid out in clear language by 
     the Regulatory Flexibility Act to fit regulations to the 
     ability of small entities to comply with them.
           Sincerely,

                                             Michael O. Roush,

                                  Director of Federal Governmental
     Relations--Senate.
                                                                    ____

                           Small Business Legislative Council,

                                    Washington, DC, June 26, 1995.
     Hon. Christopher Bond,
     Chairman, Committee on Small Business, Russell Senate Office 
         Building, U.S. Senate, Washington, DC.
       Dear Mr. Chairman: On behalf of the Small Business 
     Legislative Council (SBLC), I wish to express our strong 
     support for the ``compromise version'' of regulatory relief 
     legislation. We believe it is an important step forward on 
     behalf of the small business community.
       At the recent White House Conference for Small Business, 
     several of the top 10 recommendations included suggestions to 
     improve the regulatory process. We note that several of those 
     recommendations are addressed within the compromise version 
     of the regulatory relief legislation.
       While the delegates to the conference did not rank the 
     proposals, the number three 

[[Page S 10115]]
     vote-getter at the conference was a call to amend the Regulatory 
     Flexibility Act to add judicial review. We note that the 
     compromise version of the regulatory relief legislation 
     includes strong language to provide the judicial review 
     necessary to ensure that agencies comply fully with the 
     Regulatory Flexibility Act.
       The Small Business Legislative Council (SBLC) is a 
     permanent, independent coalition of nearly one hundred trade 
     and professional associations that share a common commitment 
     to the future of small business. Our members represent the 
     interests of small businesses in such diverse economic 
     sectors as manufacturing, retailing, distribution, 
     professional and technical services, construction, 
     transportation, tourism, and agriculture. For your 
     information, a list of our members is enclosed.
       We at the Small Business Legislative Council look forward 
     to working with you to see this legislation passed and 
     ultimately enacted into law.
           Sincerely,
                                                  John S. Satagaj,
                                                        President.
       Enclosure.
           Members of the Small Business Legislative Council

       Air Conditioning Contractors of America.
       Alliance for Affordable Health Care.
       Alliance of Independent Store Owners and Professionals.
       American Animal Hospital Association.
       American Association of Equine Practitioners.
       American Association of Nurserymen.
       American Bus Association.
       American Consulting Engineers Council.
       American Council of Independent Laboratories.
       American Gear Manufacturers Association.
       American Machine Tool Distributors Association.
       American Road & Transportation Builders Association.
       American Society of Interior Designers.
       American Society of Travel Agents, Inc.
       American Subcontractors Association.
       American Textile Machinery Association.
       American Trucking Associations, Inc.
       American Warehouse Association.
       AMT--The Association for Manufacturing Technology.
       Architectural Precast Association.
       Associated Builders & Contractors.
       Associated Equipment Distributors.
       Associated Landscape Contractors of America.
       Association of Small Business Development Centers.
       Automotive Service Association.
       Automotive Recyclers Association.
       Automotive Warehouse Distributors Association.
       Bowling Proprietors Association of America.
       Building Service Contractors Association International.
       Christian Booksellers Association.
       Cincinnati Sigh Supplies/Lamb and Co.
       Council of Fleet Specialists.
       Council of Growing Companies.
       Direct Selling Association.
       Electronics Representatives Association.
       Florists' Transworld Delivery Association.
       Health Industry Representatives Association.
       Helicopter Association International.
       Independent Bankers Association of America.
       Independent Medical Distributors Association.
       International Association of Refrigerated Warehouses.
       International Communications Industries Association.
       International Formalwear Association.
       International Television Association.
       Machinery Dealers National Association.
       Manufacturers Agents National Association.
       Manufacturers Representatives of America, Inc.
       Mechanical Contractors Association of America, Inc.
       National Association for the Self-Employed.
       National Association of Catalog Showroom Merchandisers.
       National Association of Home Builders.
       National Association of Investment Companies.
       National Association of Plumbing-Heating-Cooling 
     Contractors.
       National Association of Private Enterprise.
       National Association of Realtors.
       National Association of Retail Druggists.
       National Association of RV Parks and Campgrounds.
       National Association of Small Business Investment 
     Companies.
       National Association of the Remodeling Industry.
       National Chimney Sweep Guild.
       National Electrical Contractors Association.
       National Electrical Manufacturers Representatives 
     Association.
       National Food Brokers Association.
       National Independent Flag Dealers Association.
       National Knitwear & Sportswear Association.
       National Lumber & Building Material Dealers Association.
       National Moving and Storage Association.
       National Ornamental & Miscellaneous Metals Association.
       National Paperbox Association.
       National Shoe Retailers Association.
       National Society of Public Accountants.
       National Tire Dealers & Retreaders Association.
       National Tooling and Machining Association.
       National Tour Association.
       National Wood Flooring Association.
       NATSO, Inc.
       Opticians Association of America.
       Organization for the Protection and Advancement of Small 
     Telephone Companies.
       Petroleum Marketers Association of America.
       Power Transmission Representatives Association.
       Printing Industries of America, Inc.
       Professional Lawn Care Association of America.
       Promotional Products Association International.
       Retail Bakers of America.
       Small Business Council of America, Inc.
       Small Business Exporters Association.
       SMC/Pennsylvania Small Business.
       Society of American Florists.
       Turfgrass Producers International.
                                                                    ____

                                National Small Business United

                                   Washington, DC., June 28, 1995.
     Senator Christopher Bond,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Bond: National Small Business United is 
     extremely pleased with your efforts to pass into law S.B. 
     343. Ever since the original passage of the Regulatory 
     Flexibility Act, small businesses have expected the federal 
     government to offer more flexibility when imposing federal 
     regulations on small businesses. Unfortunately, agencies have 
     not been held accountable to this act. It did not provide for 
     judicial review which is so essential to its implementation.
       The language which you have submitted to this bill will be 
     most beneficial to small businesses across the United States. 
     It is high time that Congress and the President act to 
     provide small businesses with the opportunity to hold our 
     federal government accountable for the regulations they 
     impose on small business. Your leadership on this issue is 
     most helpful and NSBU is grateful for your efforts.
       Having just participated in the 1995 White House Conference 
     on Small Business, I am aware that this issue was number 
     three (3) on the final list of recommendations to the 
     President and to Congress. Small business owners who were 
     delegates to that conference want real reform. Your language 
     will deliver a pragmatic response to their recommendation.
       Now is not a time to compromise on this issue. It is too 
     important to job creation and the growth of the small 
     business community.
       Thank you for your leadership. NSBU will do all it can to 
     support your efforts.
           Sincerely,
                                                 John Paul Galles,
     President.
                                                                    ____

                                                  National Roofing


                                      Contractors Association,

                                     Washington, DC, July 5, 1995.
     Hon. Christopher S. Bond,
     Chairman, Committee on Small Business, U.S. Senate, 
         Washington, DC.
       Dear Chairman Bond: The National Roofing Contractors 
     Association (NRCA) applauds your excellent language providing 
     judicial review for the Regulatory Flexibility Act of 1980 
     (Reg Flex) in the Comprehensive Regulatory Reform Act of 
     1995, S. 343.
       NRCA is an association of roofing, roof deck and 
     waterproofing contractors. Founded in 1886, it is one of the 
     oldest associations in the construction industry and has over 
     3,500 members represented in all 50 states. NRCA contractors 
     are small, privately held companies, and our average member 
     employs 35 people with annual sales of $3 million.
       Reg Flex requires that federal agencies analyze the impact 
     their regulations would have on small business before they go 
     into effect and minimize that impact. But with no judicial 
     review, agencies disregard it. If an agency head certifies 
     that a regulation will have no significant economic impact on 
     small business, the agency can ignore Reg Flex.
       For example, OSHA's new Fall Protection Standard, Subpart 
     M, requires all persons working above six feet to have either 
     a safety harness on, safety nets, or scaffolding with a 
     walkway and a guardrail. We estimate its impact to be at 
     least $250 million annually; OSHA's estimate is $40 million 
     annually, and the agency goes on to state that the standard 
     will not have a significant impact upon a substantial number 
     of small entities.
       Your judicial review language for Reg Flex would put a stop 
     to this kind of agency non-compliance, and NRCA would oppose 
     any effort to weaken it.
           Sincerely,

                                            Craig S. Brightup,

                                                       Director of
                                             Government Relations.

  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER (Mr. DeWine). The Senator from California.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, I have not had an opportunity yet to speak on the 
bills before us, most specifically S. 343. For many days now I have 
listened as the Senate has been debating what are two 

[[Page S 10116]]
major regulatory reform bills. They are complex and detailed and some 
have said boring. But one way or another they will touch the life of 
virtually every American citizen.
  The fact is that regulations serve an important purpose in our 
society. But as with all laws, they have to be balanced against other 
competing needs, and reexamined from time to time in order to remain 
effective.
  I happen to be a great fan of the Senator from Louisiana. I believe 
he is a sound thinker. He is an effective leader, and he has played a 
major role in the debate on these issues. I respect him. I also respect 
the majority leader, whose bill this is, as a seasoned, experienced 
Senator who understands the impact of regulations upon the community 
regulated.
  As we address the issue of regulatory reform, I think certain 
considerations should guide us in the process.
  First and foremost, public health and safety must be the paramount 
concern. And we have heard that concern voiced over and over in the 
debate over breast cancer, over E. coli, and over a myriad of other 
regulatory programs.
  Second, Government regulations should not strangle business and 
commerce but should seek to encourage economic growth as much as 
possible. That is often easier said than done, particularly in the 
largest State in the Union where problems are severe and often 
businesses will seek to choose an easier way and leave the State.
  But the bottom line is: regulations have to make sense. Finding the 
right balance will be the determining factor as to whether we are 
successful in this effort.
  California has a huge stake in this bill both from a public safety 
perspective and an economic perspective.
  We have the biggest air pollution problem in the Nation. Children 
today, born in the Los Angeles basin, suffer from a 10 to 15 percent 
decrease in lung function compared with children in other areas as a 
result of air quality.
  California has 96 Superfund sites, the second largest number in the 
country--that is almost two major toxic waste dumps for every county in 
our State. In 1990, I had occasion to visit one of them. It is a place 
called Iron Mountain mine, near Redding, that had been owned by a 
chemical company and had been mined for various minerals. There were 
holes in this mountain, some the size of 30-story office buildings. 
When it rained, water interspersed with the chemicals producing 
sulfuric acid which then drained out onto the banks of the Trinity 
River actually metallizing some of the banks. This Superfund site is 
now in the process of being cleaned up. So I am very pleased that the 
portion of the legislation impacting Superfund sites has been removed 
from the bill.
  Santa Monica Bay, one of the most beautiful areas in the country and 
a premier tourist attraction in my State, has been contaminated with 
heavy metals and DDT to such an extent that the public is often warned 
not to eat fish caught there. I remember when I first went to live in 
Los Angeles, I went into a restaurant and ordered sand dabs and the 
waiter said, ``Don't order sand dabs; they are bottom-feeding fish and 
they are caught in the Santa Monica Bay, and the bay is polluted.''
  Economically, California's unemployment rate, though beginning to 
improve, is still two percentage points above the national average. We 
are still struggling to climb out of the recession and cope with 
continued defense downsizing.
  So the last thing California businesses need is unnecessary or 
cumbersome regulations that drive up costs and drive out jobs.
  So I have listened with great care to this debate, and I have had the 
privilege of discussing certain of my concerns with the Senator from 
Louisiana. But the bottom line and the one that I have reached is that 
the Glenn-Chafee bill contains the best and most balanced approach to 
regulatory reform.
  I would like to address what I believe are the primary weaknesses in 
the Dole-Johnston legislation.
  In the area of cost-benefit, I believe the Dole-Johnston legislation, 
in a sense, throws the baby out with the bathwater. Cost-benefit 
analyses are supposed to weigh cost and benefit and then allow for the 
best alternative to be chosen.
  The Dole-Johnston bill does not do that--it simply requires choosing 
the least-cost alternative. That does not always make sense, and it 
could have unfortunate results.
  Let me give you some examples.
  Seatbelts in the front seat. If the standards in the Dole-Johnston 
bill were applied to seatbelts, I am told by the National Highway 
Traffic Safety Administration that they would probably not be able to 
require both lap and shoulder belts in cars.
  That is because, even though having both lap and shoulder belts save 
lives, the lap belt alone is the least-cost alternative.
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mrs. FEINSTEIN. The Senator is going to have a number of points to 
respond to. He might want to listen to them all first. If I could 
finish, I would appreciate it.
  Mr. JOHNSTON. Sure.
  Mrs. FEINSTEIN. I thank the Senator very much.
  Seatbelts in the back seat. They would also not be able to require 
seatbelts in the back seat.
  Because 90 percent of those killed in automobiles are people in the 
front seat, rear-seat fatalities are not likely to meet the statistical 
threshold that would allow the agency to require seatbelts in the back. 
My source for this information is the Department of Transportation's 
general counsel's office.
  Airbags. If airbags were not already required by law, which they are, 
it is unclear under Dole-Johnston whether airbags could be required.
  Again, this is because airbags, even though they are much safer, are 
also more costly than manual seatbelts or lap and shoulder belts. And 
again, the least cost alternative would have to be chosen.
  Airline flight data recorders. This is the black box that we all read 
about when a plane goes down. If the standards of the Dole-Johnston 
bill were applied to airline flight data recorders, the FAA tells me 
that it might not be able to require flight data recorders on airlines.
  This is because flight data recorders do not necessarily reduce 
immediate risks. Instead, they provide valuable information which can 
greatly enhance airline safety in the future.
  The Glenn-Chafee bill, I believe, is far preferable. Unlike the Dole-
Johnston bill, the Glenn-Chafee bill requires a rigorous cost-benefit 
analysis and permits both costs and benefits to be weighed 
intelligently, with public health and safety given its full and proper 
weight in the equation.
  Now let me talk about petitions. The Dole-Johnston bill's petition 
process would allow special interests to challenge new rules and reopen 
existing rules, giving them unprecedented power to jam up the process.
  By some estimates, the Dole-Johnston bill would allow 80 to 100 new 
reasons for challenging an agency rule. My source is attorneys who deal 
with these matters. With 80 to 100 new reasons for challenging an 
agency rule, agencies will be forced to divert their resources--their 
time, their staff, their dollars--to respond to these petitions.
  Dole-Johnston would open the door to hundreds of additional lawsuits, 
increasing the volume and complexity of Federal litigation--some want 
that--and further clogging the court system.
  This is one of the main reasons why the Justice Department strongly 
opposes this bill.
  Let me give an example of some possible results.
  Commuter airline safety. In recent months, there have been three 
crashes of commuter airlines in which a total of 40 people have been 
killed. Following a fatal commuter airline accident in December 1994, 
the Secretary of Transportation proposed new commuter airline safety 
regulations.
  More and more people are flying commuter airlines. Having completed 
their own cost-benefit and risk-analysis assessment, the FAA is close 
to finalizing these new, urgently needed safety standards.
  Again, the general counsel of the Department of Transportation 
informs us that they will be faced with a Hobson's choice. Let me give 
you an example. They are nearly ready to finalize. The language in 
Dole-Johnston would derail these efforts and force the FAA to either 
start over in order to comply with the specific least-cost and risk-
assessment criteria in S. 343, or proceed 

[[Page S 10117]]
with the new regulations, knowing they will likely be challenged and 
held up in court for years.
  So, in other words, the FAA would be challenged that they do not meet 
the specific new cost-benefit requirements or they could delay and redo 
the cost-benefit and the risk assessment. But if they move ahead, as 
under the present legislation, as they are prepared to do, they run 
this jeopardy.
  Let me talk for a moment about an automatic sunset. My understanding 
of the legislation is that once a petition is accepted, the agency has 
a 3-year review period to review the rule. If an agency is unable to 
complete this review, a sunset of the rule would result. So the 
arbitrary deadline of 3 years is a trigger for sunsetting some of these 
regulations.
  This could result in an automatic sunset of important health and 
safety rules. Let me give you some examples.
  Automobile fuel efficiency standards.
  Food labeling regulations--which have served to educate consumers.
  Does every Member in this body remember food labeling regulations 
were very much contested by the industries affected, but they are now 
part of every product? People respect them, use them, and I think they 
are effective.
  Regulations to ensure the safety of children's toys, cribs, bed 
clothing.
  The Glenn-Chafee bill, on the other hand, accomplishes regulatory 
review of existing rules without creating regulatory gridlock. It 
requires agencies to review existing rules every 10 years, without 
allowing special interests to dictate the workload of Federal agencies 
whose mission is to protect public health and safety.
  One of the major criticisms of the Dole-Johnston bill is that it is 
too ambiguous. Let me tell you what I mean by this.
  Let us take the issue of the supermandate.
  From the language of Dole-Johnston and a recent amendment, it is 
still unclear what will happen when the bill's requirements conflict 
with requirements in existing statutes.
  Although the new amendment states that Dole-Johnston's requirements 
should not override existing statutory requirements, which will be 
given more weight? What legally does the word ``override'' actually 
mean?
  Would the least-cost requirement trump the health-based standards of 
the Clean Air Act?
  What is the impact on annual farm programs? Because the Department of 
Agriculture currently uses greatest-net-benefit criteria and not the 
least-cost alternative required under Dole-Johnston, it throws open the 
question of who can participate, what the terms of participation are, 
and what the costs will be.
  The Dole-Johnston bill leaves these questions up to the courts.
  Let us take the issue of judicial review.
  According to the Justice Department, eight different sections of the 
bill provide separate statutory grounds for judicial review. The 
Justice Department in its letter to Senator Dole lists the sections. 
Even the Justice Department is unsure about how these provisions would 
relate to each other.
  Moreover, the ambiguous language could mean that the courts will be 
called upon to evaluate scientific and technical steps in cost-benefit 
analyses and risk assessments, issues outside of the realm of expertise 
of judges.
  Let us take the issue of emergeney exemptions.
  Another problem with ambiguity in Dole-Johnston is its definition of 
an emergency.
  For example, the bill refers to actions to protect public health and 
safety or natural resources, but the Department of Agriculture has 
raised with us questions about how Dole-Johnston would affect an 
emergency such as infestation of the Mediterranean fruit fly.
  Let me explain why. The Department of Agriculture believes the 
emergency provisions are sufficiently ambiguous and relate to health 
and safety, not to economic emergency.
  Now, the Medfly in California is a major problem. Parts of the State 
have been quarantined because of the Medfly. But it is really an 
economic emergency because the farmers lose their entire crop when a 
Medfly is found. And emergency actions periodically have to be taken, 
such as tree stripping, aerial spraying, and so on. It is unclear under 
Dole-Johnston whether the Animal and Plant Health Inspection Service 
could act quickly enough to take the necessary steps to protect the 
economic interests of agriculture from pest infestations.
  The inability to act quickly could cost agriculture millions of 
dollars in destruction of crops and loss of export markets.
  Let me conclude.
  I support regulatory reform that solves problems that have been 
identified in the regulatory system, not one that creates more 
problems.
  I support reform that puts public health and safety first.
  And I support reform that makes the Federal Government more efficient 
and effective.
  I do not believe the Dole-Johnston bill meets that test. I do not 
believe it is really regulatory reform. It does not simplify the 
process. Instead, I believe it will burden the agencies so that they 
cannot do their job. And as the Justice Department has warned, it will 
burden the courts significantly. I simply cannot support it.
  Many regulations are essential to protect public health, safety, and 
the environment.
  I remember when we had the worst air in Los Angeles. I lived in 
southern California for 5 years, and I remember when I went outside, my 
eyes burned and teared. The air quality is better now, and that is 
because of clean air regulations. They have been hard on hundreds of 
businesses, no question about it. But you have to consider, what is the 
cost of 15 to 20 percent of youngsters born in the Los Angeles Basin 
having reduced lung capacity and, therefore, a shortened span of life. 
How do you measure that cost?
  The San Francisco Bay area is now the largest metropolitan area of 
the country that complies with the clean air standards. In the early 
1970's, I served on the air board. Even major oil companies have told 
me that the air regulations have worked.
  Nobody should think that Glenn-Chafee is a copout, a soft bill, or 
that it will not do the job. The Glenn-Chafee bill is a very tough 
bill.
  It represents real regulatory reform, without unjustifiably burdening 
the agencies or clogging the court system.
  The Glenn-Chafee bill requires cost-benefit analysis for all major 
rules, just where we should be. It requires risk assessments for all 
major rules related to environment, health, and safety, just where we 
should be.
  It requires peer review of cost-benefit analysis and risk 
assessments, just where we should be.
  It accounts for the special needs of small businesses, allowing small 
entities to petition for judicial review of compliance with the 
Regulatory Flexibility Act.
  It requires public disclosure and openness in the regulatory process.
  And it limits judicial review to determine: First, whether a rule is 
major; and, second, whether a final rule is arbitrary or capricious.
  Most importantly, the Glenn-Chafee bill cuts redtape while retaining 
the role of Government in protecting public health, safety, and the 
environment.
  I believe the Glenn-Chafee substitute is a good bill, and I intend to 
support it.
  I yield the floor.
  Mr. JOHNSTON. Mr. President, the distinguished Senator from 
California has raised eight different points. There is a full, 
complete, definitive and, I believe, unassailable answer to each of 
these. If the Senator will allow me, I will tell her why in each of 
these instances, the information she has been given is dead, flat 
wrong.
  You know, Mr. President, there is a saying that ``There is none that 
is so blind as he who will not see.'' I think we have, on behalf of 
some of these agencies that have been advising my friend from 
California, a terminal blindness.
  Let us start with No. 1. We are told again that the Dole-Johnston 
bill requires the least-cost alternative. Mr. President, here is the 
language.

       Least cost alternative, or if scientific, technical, or 
     economic uncertainties, or nonquantifiable benefits to 
     health, safety, or the environment identified by the agency 
     in the rulemaking record make a more costly alternative * * * 
     appropriate or in the public interest * * * they can do so.

  Mr. President, what could fit more perfectly into these kinds of 
benefits 

[[Page S 10118]]
than shoulder belts, back-seat seatbelts, and airbags? As my friend 
from California says, an airbag is ``much safer but more costly.''
  Now, I ask my friend, what is ambiguous about that? It is just as 
plain as the nose on your face. If it is good for safety, even though 
it is not quantifiable--because the value of a human life is, by its 
nature, nonquantifiable--you can do it.
  Black boxes on airplanes. Mr. President, the same thing.
  Now, how do my colleagues continue to say that this language requires 
the least-cost alternative?
  Mr. LEVIN. Mr. President, will the Senator yield?
  Mr. JOHNSTON. Yes.
  Mr. LEVIN. Since the Senator asked and my colleagues continue to ask 
that question, let me try to answer that question: It is because we 
have repeatedly, over and over again, said that if the benefits to 
health and safety or the environment are quantifiable, your exception 
does not apply.
  Now, what sense does it make to say that if the benefits to health, 
safety, and the environment can be quantified, that then we have to go 
with least cost, even though a slight additional cost would give much 
greater benefits?
  Now, I have never understood why the Senator from Louisiana insists 
on the word ``nonquantifiable benefits.'' We have gone over and over 
that issue.
  That is the answer to the question.
  Mr. JOHNSTON. It is because, Mr. President, the definitions in 
section 621 state clearly that the term ``benefit'' means the 
reasonably identifiable significant, favorable effects, quantifiable 
and nonquantifiable.
  Mr. LEVIN. Except that is limited by the Senator's language in 
subsection (b). When it comes to the least costly alternative, the 
Senator does not say ``benefit'' which is, in fact, defined somewhere 
else. It is limited to nonquantifiable benefit.
  That is a question which has been raised for the last week, and for 
the life of me, I do not understand why the word ``benefit" means 
quantifiable or nonquantifiable for the purposes of the act generally, 
but when it comes to the least-cost requirement, it is only the 
nonquantifiable benefits which are going to be an exception. That is 
the answer to the Senator's question.
  Mr. JOHNSTON. Mr. President, let me ask my friend from Michigan, it 
is right there in the definition of section 621. If we took that word 
``nonquantifiable'' out, would the Senator then agree with me that it 
does not require least cost, that this discretion is there? Or is this 
just another one of the ghosts, once we get out of here there are more 
ghosts to be found?
  Will this solve the provision?
  Mr. LEVIN. It solves one of three decisional criteria raised by my 
good friend from Louisiana. It addresses one of the remaining 
decisional criteria issues. These have been described, I think, in 
fairness. I think my friend would say that we have set forth in a 
document the difficulties with the definition ``decisional criteria,'' 
and this is one, I believe, if my memory is correct, one of three which 
have been very precisely specified. I think it does address the one 
specific one of the three we have raised.
  For instance, another exception, if my friend----
  Mr. JOHNSTON. Mr. President I want to keep this discussion to a 
question, and not a speech.
  Again, the question is, what is the value of a human life? It is, in 
my view, very clearly by nature nonquantifiable. That is the reason for 
putting in the language.
  Mrs. FEINSTEIN. Would the Senator yield the floor?
  Mr. JOHNSTON. Yes.
  Mrs. FEINSTEIN. The point I was trying to make is the back seat 
seatbelts are quantifiable. Therefore, it would not apply.
  Mr. JOHNSTON. This is for health, for life.
  Mrs. FEINSTEIN. But it is quantified in that only 10 percent of the 
people die in the back seat. The problem is in the front seat.
  Mr. JOHNSTON. There are thousands of people who die in automobile 
accidents and many whose death could be prevented by back seat 
seatbelts. That is a nonquantifiable value.
  We do not have to get least cost. The very idea that we say we have a 
rule that would save a lot of lives, that we have to go to the least 
cost which is front seat instead of back seat, I submit to my friend, 
is patently absurd.
  Mr. BOND. Will the Senator yield the floor?
  Mr. JOHNSTON. I am happy to yield to the Senator.
  Mr. BOND. I wonder if the Senator is aware that Prof. John Graham, of 
the Harvard Center for Risk Analysis, who is an expert on risk 
assessment, started off his analysis by finding that a regulation 
requiring airbags, for example, was precisely the kind of regulation 
that was worth the cost, and that Professor Graham is currently or has 
just concluded a session with the media next door to the Chamber, 
pointing out that the Dole-Johnston bill precisely does meet the 
criteria which he developed in the Harvard Center for Risk Assessment 
as developed for determining what are reasonable regulations and, in 
fact, has stated that the Dole-Johnston substitute does permit the kind 
of analysis which would lead to the kind of life-saving regulations 
such as the requirement for airbags.
  Mr. JOHNSTON. It is absolutely true. Professor Graham has testified 
before our committee. Of course it allows for that.
  Mr. LEVIN. Mr. President, will the Senator yield?
  Mr. JOHNSTON. Briefly.
  Mr. LEVIN. The Senator raises a question. If there are 823 lives 
saved, according to a cost-benefit analysis, for the cost of $1 
million, is that quantified or not quantified?
  Mr. JOHNSTON. Generally for the life, for the 20th or 30th time, the 
value of the life is not quantifiable by its nature.
  Mr. LEVIN. The definition in the bill says that ``if the 
nonquantifiable benefits to health, safety, or the environment 
identified by the agency,'' et cetera.
  The number of lives in my hypothetical is very, very precise and is 
quantified. Now, since the agencies are likely to read that cost-
benefit analysis and they have said that the number of lives saved is 
quantified in my hypothetical, therefore, it would not be eligible for 
this exception. Again, for the life of me, I do not understand why the 
Senator from Louisiana in his bill insists on the word 
``nonquantifiable benefit'' when the word ``benefits'' as defined 
generally, is both quantifiable and nonquantifiable, and where if, in 
fact, benefits are quantified, it would seem to me it would be 
essential we allow the same exemption as when they are nonquantified.
  Mr. JOHNSTON. Mr. President, I have given the answer to that 
question. I will give it again.
  It is because the definition of section 621 includes both 
quantifiable and nonquantifiable and because life is, by its very 
nature, not quantifiable in value, although we may count up the number 
of lives.
  Point No. 2, my friend from California says the petition process 
would open up 80 to 100 new reasons why attorneys could challenge 
rules.
  Not so, Mr. President. There is one single standard, which is that 
you must show a substantial likelihood that the existing rule does not 
meet the standards of this bill, which means that the benefits do not 
justify the cost. It is one standard. You have one chance to do it in 
the 180-day period. It is just as clear as it can be. I do not know 
where the 80 to 100 new reasons--I suspect that there are some lawyers 
who were told that they are against this bill, and go make up reasons, 
and they did not do a very good job of making them up.
  Point No. 3--I hope my friend from California is listening--commuter 
airlines, 40 people killed, they are ready to finalize the order, and 
they would have to start over.
  Now, Mr. President, last week we put in an amendment specifically to 
deal with this question. If the notice of proposed ruling making was 
out by April 1, they are not covered by these requirements--not covered 
by these requirements. We had a long debate, and we accepted the 
amendment.
  Now, Mr. President, these commuter airline proposals were out long, 
long before April 1. Now, does my friend from California understand 
that? Did someone say that amendment does not cover this?
  Mrs. FEINSTEIN. If the Senator was asking me a question, let me 
answer it with this question back to the Senator.
  Are they still subject to the petition process?
  
[[Page S 10119]]

  Mr. JOHNSTON. They are subject to a petition process, but that does 
not--the Senator said that they are ready to finalize, and they have to 
start over again, the rule would go into effect.
  Mrs. FEINSTEIN. But they would have to face the challenge, because 
the cost-benefit risk assessment that they were doing is different from 
the one that would be required.
  Mr. JOHNSTON. No, they do not have to do a cost-benefit or a risk 
assessment if their notice of proposed rulemaking was out before April 
1. It is just as clear as it can be.
  Let me finish answering these questions from the Senator from 
California.
  My friend from California says there is an automatic sunset. If she 
would look at the section on page 33, that is section 623, it provides 
that, if a rule is likely to terminate and the agency needs additional 
time, and terminating the rule is not in the public interest, and the 
agency has not expeditiously completed its review, you not only can get 
up to an additional 2 years, but you can get a court order to tell them 
to complete the rule or to do other needful things.
  I do not know where this automatic sunset comes from. It is not an 
automatic sunset. It is just not. And the words are clear.
  Mr. GLENN. Will the Senator yield?
  Mr. JOHNSTON. Yes.
  Mr. GLENN. But if the time came for the rule to expire? Let us say we 
are reviewing the rule, the existing rule, and the time came and went 
past for the review of that rule. It could sunset at that point unless 
you asked for this extension.
  Then, if you ask for the extension, let us say it was granted; let us 
say it was extended. Then, when you run out of that time period, it 
would in fact sunset.
  Mr. JOHNSTON. If everybody wants the rule to sunset it can sunset. 
You can terminate a rule today.
  Mr. GLENN. Here is what we do on Glenn-Chafee. We say at the end of 
that time period the agency has to either approve the rule or start the 
rulemaking process to repeal it. And that lets all public comment come 
in, which is a much fairer process than just running out a couple of 
extensions and guillotining the whole thing.
  Mr. JOHNSTON. There is virtually no difference between this 2-year 
extension provision of the Dole-Johnston amendment and in the Glenn-
Chafee substitute.
  Mr. GLENN. No, I disagree with that.
  Mr. JOHNSTON. You provide for the court to use section 706 of the 
Administrative Procedure Act in order to give the needful review. We 
provide that the court of appeals grant such equitable relief as is 
appropriate. If anything, ours is broader than yours.
  The point is, it is not an automatic sunset. It is just not. It may 
sunset, that is if everybody wants it to sunset. But if anybody cares, 
they can petition the court.
  Mrs. FEINSTEIN. May I just read the section on its face? Will the 
Senator yield for a moment?
  Mr. JOHNSTON. Yes.
  Mrs. FEINSTEIN. Termination of the rules, page 34:

       If the head of an agency has not completed the review of a 
     rule by the deadline established in the schedule published or 
     modified pursuant to subsection (b) and (c), the head of the 
     agency shall not enforce the rule and the rule shall 
     terminate by operation of law as of such date.

  Mr. JOHNSTON. But now if the Senator will look over on the previous 
page, subsection (3),

       An interested party may petition the U.S. Court of Appeals 
     for the District of Columbia to extend the period for review 
     of a rule on the schedule for up to 2 years, and to grant 
     such equitable relief as is appropriate.

  To be sure, if nobody cares, if the agency head wants the rule to 
terminate and the whole world wants it to terminate and nobody cares, 
nobody files a petition--yes. But that is a whole lot different from 
saying that this thing automatically sunsets.
  Mr. LEVIN. If the Senator will yield on that point? Is the Senator 
then willing to amend his bill to say if anybody petitions a court at 
any time opposing sunset, that then it will not sunset? Just the act of 
petitioning a court? Because the Senator said ``if nobody cares.''
  It seems to me that is quite, quite different from what is in the 
bill, which says: Sure, if you go to a court and get an order that says 
it does not sunset it will not sunset.
  But that is not the obvious meaning of the word sunset.
  Mr. JOHNSTON. It is quite clear. It is a low barrier. You have to 
show the rule is likely to terminate, the agency needs additional time, 
that terminating the rule would not be in the public interest, and that 
the agency has not expeditiously completed its review.
  Mr. LEVIN. That is for the extension. I am not referring to the 
extension. I am talking about after the 2 years runs out, if a court 
has not ordered that rule to continue it expires.
  Mrs. FEINSTEIN. Right.
  Mr. JOHNSTON. The court has had a chance to review this and has given 
such orders as are necessary, which might be--I guess what the court 
would order is a schedule. Public comments to be completed by such and 
such a time. Final rule by such and such a time. They have full and 
complete discretion.
  There may be some rules that, upon review by the court, should 
terminate. But it is not automatic. You have a chance to go to court to 
get that rule extended.
  Mr. LEVIN. Will the Senator yield for a question?
  Mr. JOHNSTON. I think I have answered that. Let me move on.
  Mr. LEVIN. This is a different question. Can the court extend the 
period for review beyond 2 years?
  Mr. JOHNSTON. No. They have already had--first of all, they have had 
1 year after the expiration--I mean after the effective date of the 
act. They have had 3 years minimum initially, plus they have had these 
2 years--that is 6 years. They cannot extend it beyond 6 years. But 
they can make such orders to continue the rule as is necessary.
  Now, my friend from California says the supermandate language is 
ambiguous. For the life of me, Mr. President, the supermandate language 
we said was unnecessary in the first place because the bill is clear 
and I believe it is. But at the behest of all the people who said we 
have to have supermandate language, we adopted the language using their 
word. ``Override'' was not our word, it was the word of others.
  It says, now, ``nothing in this section shall be construed to 
override any statutory requirements including health, safety and 
environmental requirements.''
  For the life of me I do not know what you do to please the opponents 
of this provision. We first accept the principle and put it in the 
bill, and it is clear. But, oh, no, they find an ambiguity.
  We come back and put in the precise language, the override language 
that they want, and it is still not good enough.
  Mr. President, what can we do to satisfy the opponents of this bill? 
If that language is not good enough--tell me what is. It is incredible.
  Judicial review language, Mr. President--my friend from California 
says that you ought to have review of the final agency action to 
determine whether it is arbitrary and capricious and that is the only 
purpose for which risk assessment and cost-benefit can be considered.
  I invite my friend from California to look at the language. That is 
exactly--exactly what it says. If you can find an ambiguity in these 
words we will change them, because there is no ambiguity in those 
words.
  There is a lot of ambiguity in the Glenn substitute and I can show 
you exactly where that ambiguity is. But there is no ambiguity in that. 
It adopts exactly and precisely what the Senator says. Those studies 
can be used solely--``solely for the purpose of determining whether the 
final agency action is arbitrary and capricious or an abuse of 
discretion.''
  Where is the ambiguity in that language? I am at a loss to 
understand.
  I can show the Senator where the ambiguity in the Glenn-Chafee 
language is, but there is clearly not any here.
  Mr. LEVIN. I wonder if the Senator will yield on that question?
  Mr. JOHNSTON. I will.
  Mr. LEVIN. Because the Justice Department has set forth the ambiguity 
in the words ``failure to comply.''
  The question is whether or not those words refer to the procedural 
irregularities which could occur in the cost-benefit analysis or in the 
risk assessment. 

[[Page S 10120]]

  Their letter dated July 11, 1995, is a pretty serious source, the 
Justice Department. They say on page 2 in a letter to Senator Dole that 
there remain two basic problems which create the potential for 
litigation under section 625.

       First, section 625 provides that failure to comply--they 
     underline the words ``with the.'' They now substitute the 
     words ``the rules pertaining to cost-benefit and risk 
     analysis.''

  If, in fact, that is not what the Senator's language----
  Mr. JOHNSTON. That is correct.
  Mr. LEVIN. ``Failure to comply with the rules pertaining to the cost-
benefit and risk analysis.'' Again, they insert as to what they believe 
you are intending, that failure may be considered by the court solely 
for the purpose of determining whether the final agency action is 
arbitrary or capricious or an abuse of discretion.

       When this section is read in conjunction with the 
     extraordinarily detailed and proscriptive requirements for 
     risk assessment and cost-benefit analyses contained elsewhere 
     in the bill, it is clear that the alleged failure to comply 
     with any of those requirements will be the subject of 
     litigation. Petitioners will surely argue that failure to 
     comply with the extensive procedural requirements is itself 
     arbitrary and capricious.

  That is the Justice Department. That is a pretty solid source of a 
question. Since the Senator asked, ``Where is the question?'' There it 
is.
  Mr. JOHNSTON. They do not say why it is. I must say that this letter 
from the Justice Department gives me real pause to consider what the 
quality of our people in the Justice Department is because there is no 
ambiguity here. They simply say it. They make an unsupported statement 
and anybody can say anything. But you cannot read out this the word 
``solely.'' They just read it out. They go on to say--you will notice 
that the letters says not that ``solely'' is not there but that it will 
be the subject of litigation.
  It is like when I used to practice law, Mr. President. Somebody would 
come in and say, ``Can I sue somebody about such and such?'' And I 
would say, ``Sure. You can sue. But the courts are not going to grant 
the subject of your suit.'' You know, you can summons up the witches 
from the briny deep. But will they come? No. They will not come. They 
will not. Alleging something that is clear in the four corners of the 
statute does not mean it has any substance. If they are going to sue on 
that, let me tell you. They are going to sue on Glenn-Chafee because 
Glenn-Chafee is ambiguous.
  Let me finish these two other points, and then I want to ask a 
question.
  Mr. LEVIN. May I ask a narrow question of my friend?
  Mr. JOHNSTON. Let me return to this in just a moment. I will engage 
you when I finish these two other things.
  My friend from California says that the emergency regulations here 
are not clear, that they are ambiguous. The first time I heard that 
raised--honestly, to say that you cannot deal with the medfly, that 
somehow that escapes health, safety, or the environment, Mr. President, 
if medfly is not included in the environment, I do not know what is; or 
under health. I mean we are talking about something that could destroy 
all the fruit in California. And that does not have anything to do with 
health? Who are these people over in the Agriculture Department telling 
you that fruit does not have anything to do with health? I mean what 
kind of contorted, convoluted logic, to say that fruit does not have 
anything to do with health? I mean it is clear, Mr. President. I mean 
these people who oppose risk assessment are looking for ghosts, and 
finding them everywhere. And you find one ghost, you say what does it 
take to fix that ghost? You are given the language they want, and they 
come back and say, ``Ah ha. But that language is ambiguous.'' The 
supermandate language which was unnecessary in the first place which 
said for a second time in words that the opponents suggested and know 
it is somehow ambiguous, I mean this is a no-win situation. We have to 
face the fact that some people are opposed to risk assessment.
  Now my friend from Michigan finds ambiguity in this. I now have the 
Glenn-Chafee language here. I would like to ask him how this last 
language differs from our language when our language says that you may 
consider final agency action to determine whether it is arbitrary and 
capricious. You did, by the way, have in the Record the risk analysis 
and cost-benefit, did you not? Is that required?
  Mr. LEVIN. Yes.
  Mr. JOHNSTON. All right. How does this differ from what we have said?
  Mr. LEVIN. I think the difference is in the preceding language. The 
difference is in the preceding language in Glenn-Chafee which, if an 
analysis assessment had been performed, the courts shall review to 
determine whether the analysis or assessment conformed to the 
``particular requirements.'' I am wondering whether or not my friend 
from Louisiana might be willing to add that same language into his 
bill.
  Mr. JOHNSTON. In the first place, I think it is ambiguous. What are 
``particular requirements''? That to me means a de minimis test. Words 
are supposed to mean something. It means something different than 
``conformed to the requirements of this chapter.''
  So when it says ``particular requirements,'' I would assume that 
means that you need not deal with the technical----
  Mr. LEVIN. ``Specific.''
  Mr. JOHNSTON. ``Individual,'' but you look at the requirements of the 
chapter.
  Would not that be fair?
  Mr. LEVIN. Look at the ``specific requirements.'' But my question is 
since that is a narrowing language that is intended--I do not believe 
my friend from Louisiana has too much objection to it--assuming that 
one little issue can be addressed, does the Senator from Louisiana have 
a problem with adding that narrowing language to his bill?
  Mr. JOHNSTON. I think it does not narrow.
  These two proposals, I believe--you have to read them In pari 
materia. What I get from this last sentence is that this is a review. 
You have ``judicial review of the agency action.''
  I submit to you that review is under section 706 of the 
Administrative Procedures Act. If it is not, tell me under what 
standard it is reviewed.
  Mr. LEVIN. I think that is correct.
  Mr. JOHNSTON. That is correct.
  Mr. LEVIN. I believe that is correct.
  Under that section, the courts have adopted the following standard, 
that the procedural errors ``were so serious and related to matters of 
such central relevance to the rule that there is a substantial 
likelihood that the rule would have been significantly changed if such 
errors had not been made.''
  So that has been the interpretation under 706 by the courts, that the 
procedural errors ``were so serious and related to matters of such 
central relevance to the rule that there is a substantial likelihood 
that the rule would have been significantly changed if such errors had 
not been made.''
  That interpretation is a narrowing interpretation where the new 
language----
  Mr. JOHNSTON. There may be a court interpretation of that. But you 
have under your amendment a review of subsection (d), ``without 
observance of the procedure required by law.'' According to what you 
have said, you are going to review the procedure because that is what 
subsection (d) says. We do limit under our amendment. Our amendment is 
limited specifically to whether the final agency action is ``arbitrary 
and capricious.'' That is much narrower than that which you state. It 
is at least ambiguous.
  Mr. LEVIN. I am wondering, relevant to the answer that I gave the 
Senator, whether or not the Senator is willing to incorporate that 
narrowing language?
  Mr. JOHNSTON. No. I say the answer is no for the third time. And the 
reason is that it is not narrowing. It is expanding, and it is 
ambiguous.
  Mr. LEVIN. I am referring here though now to the interpretation of 
section 706. You see, that has been interpreted. It has been 
interpreted as I just read. The language of the Senator from Louisiana 
has not so been interpreted yet, and is open to a much more expansive 
interpretation.
  Mr. JOHNSTON. Look. That is precisely the same. That is an additional 
interpretation. ``Arbitrary, capricious, an abuse of discretion.'' That 
is the standard that we bring forward. We leave out ``otherwise not in 
accordance with law'' because we wanted to leave out the procedural 
review. 

[[Page S 10121]]

  That is one of the most litigated and judicially interpreted phrases 
in all of the annals of judicial review. And it is the same precise and 
exact standard which you claim is provided in your review.
  You see the only difference between yours and ours, we both use 
``arbitrary, capricious, an abuse of discretion.'' But you have 
``observance of procedure required by law.'' But you claim that either 
that is meaningless or that your language takes it away. So I say it 
adds nothing to it other than ambiguous.
  Mr. LEVIN. The difference though again is that the Senator's bill has 
new language which has not interpreted failure to comply whereas the 
language, as the Senator points to in our bill, has been interpreted in 
a way which is significantly narrower than--may I say--what the Justice 
Department feels is likely or could be interpreted into the words 
``failure to comply.''
  That is the difference, that there is a new test, failure to comply, 
in the Senator's language and has not been made the subject of the kind 
of review under the Administrative Procedures Act.
  Mr. JOHNSTON. We say, ``Failure to comply may be used solely for the 
purpose of determining whether that is arbitrary and capricious,'' and 
that differs not at all from what you have said. You allow for a review 
of procedures. What does it mean in subsection (d) when you state 
``without observance of the procedure required by law''?
  Mr. LEVIN. Would the Senator agree that the words ``failure to comply 
with'' intend to refer to the rules pertaining to cost-benefit and to 
risk analysis? That is the intention of the Senate?
  Mr. JOHNSTON. Look, we have a whole big section there that speaks for 
itself, of course, that means the risk analysis and cost-benefit, and 
it means peer review. And, as I said earlier, there will be times when 
procedural defects, if someone calls them that, might throw the whole 
rule out.
  Suppose it is a regulation on second-hand smoke. If all the 
scientists were from the tobacco industry, it would be fundamentally 
unfair and the scientific judgment would be important. And if I were 
the judge I would throw it out, even though that is a failure to comply 
because it would render the whole thing as an abusive discretion and 
arbitrary and capricious.
  Mrs. FEINSTEIN. Will the Senator yield for just a moment?
  The Senator had one question he asked, his first question for the 
list of 80 to 100 reasons. I have 144, some of which have been 
remedied. I would like to enter this into the Record, if I may.
  Mr. JOHNSTON. Sure. I think that may have been put into the Record 
earlier. I think that was put into the Record earlier this morning.
  I believe we might check with Mr. Weiss.
  Mr. THOMPSON. Will the Senator yield for a question?
  Mr. JOHNSTON. Yes, I will yield for a question.
  Mr. THOMPSON. I ask the Senator, is it accurate that section 625 has 
to do with jurisdiction and judicial review?
  Mr. JOHNSTON. Section 625. The answer is yes.
  Mr. THOMPSON. And with regard to any question such as the one that 
the Senator from Michigan raised pertaining to jurisdiction and 
judicial review, would that section apply?
  Mr. JOHNSTON. Would it apply?
  Mr. THOMPSON. With regard to the questions of to what judicial review 
will pertain, would that be the governing section, section 625?
  Mr. JOHNSTON. You mean judicial review under titles II and III of 
cost-benefit analysis?
  Mr. THOMPSON. Yes.
  Mr. JOHNSTON. The answer is yes.
  Mr. THOMPSON. The question has arisen as to the language ``failure to 
comply'' and how that might relate to some other section. I share the 
concern of the Senator from Louisiana and bemusement really as to why 
our friends refuse to read the rest of that sentence. Instead of 
reading the rest of the sentence in which that phrase is contained, 
other sections are referred to.
  Is it not true that it is ``failure to comply with this subsection 
may be considered by the Court solely for the purpose of determining 
whether or not the final agency action is arbitrary and capricious,'' 
et cetera?
  Mr. JOHNSTON. The Senator is correct. And the critics read out of 
that statute the word ``solely,'' and they find ghosts everywhere. But 
``solely'' means solely, and it is right there in the language. For the 
life of me, I cannot understand where people find ambiguity in it other 
than they are looking for it.
  Mr. THOMPSON. I compliment the Senator in his attempt to deal with 
this issue. It is as if someone would say that the Senator's desk is 
yellow, and you can argue that it is not, and someone else can argue 
that it is. But there comes a point at which you want to throw up your 
hands, I am sure, because you are dealing with clear language, and I 
fail to see how anyone could misinterpret this. It has only to do with 
final agency action. Is that correct?
  Mr. JOHNSTON. That is absolutely correct.
  Mr. THOMPSON. And if there is a phrase or a couple of words within 
that provision that our friends think may in some way be ambiguous in 
interpreting another section or another phrase in another section of 
the statute, would still not section 625 be the ruling section as far 
as what judicial review is? It is a judicial review question we are 
concerned with here, is it not?
  Mr. JOHNSTON. That is exactly right.
  Mr. THOMPSON. I share the Senator's real perplexity as to what the 
confusion is with regard to the review in that section. It is clear 
that it cannot be considered independently, that you cannot take--you 
can look at a cost-benefit analysis or a risk assessment independently 
and provide your own independent judgment on that, but it can only go 
into the final rule in making a determination as to whether or not the 
final rule is arbitrary and capricious, et cetera. Is that correct?
  Mr. JOHNSTON. Exactly and precisely. My friend from Tennessee puts it 
very well.
  Mr. THOMPSON. I thank the Senator.
  Mr. JOHNSTON. I am reminded, I tell my friend from Tennessee, of the 
old quotation from Groucho Marx, who said, ``Politics is the art of 
looking for trouble, finding it everywhere, and applying to it the 
wrong solutions.''
  Mr. THOMPSON. And most of it finds its way into legislation, I 
venture to say.
  Mr. JOHNSTON. With this bill, the opponents look for ghosts and 
trouble everywhere, they find it everywhere, and they apply to it the 
wrong solutions.
  Mr. President, this language is clear, and I do not care who says 
otherwise. Show me where that is unclear. As I say to my friend from 
Michigan, his interpretation of his judicial review provision is 
exactly what ours says. His gives with the left hand a procedural 
review, takes it away with the right hand in ambiguous language, and 
interprets that with court cases which he says are clear. But we 
obviate the problem for any of that by simply saying there is no 
procedural review. He has a procedural review in his proposal. We do 
not have that in ours. That is why ours is preferable. It is clearer. 
It is free of all ambiguity.
  I yield the floor.
  Mr. DODD. Mr. President, I rise today in strong support of the 
bipartisan regulatory reform bill introduced by Senators Glenn and 
Chafee. Unlike the more radical Dole-Johnston proposal, this 
legislation would make much-needed reforms to the regulatory process 
without jeopardizing the health and safety of American families.
  There is widespread agreement about the need for regulatory reform. 
Nobody wants to see American businesses, our engine of economic growth, 
hampered by unnecessary regulations. We must constantly monitor Federal 
agencies to ensure that the rules they issue are narrowly tailored and 
rationally enforced.
  In some instances today, this is unfortunately not the case. Many 
residents of my home State of Connecticut have told me about 
regulations that are not working well. And we have all heard stories 
about regulations that seem to defy commonsense. The answer, however, 
is to change nonsensical regulations and implement some common sense 
reforms. We should not overreact by bringing the Government's ability 
to protect American families and workers to a grinding halt. 

[[Page S 10122]]

  In my view, President Clinton has done an outstanding job in this 
area. As part of their ongoing effort to reinvent government, he and 
the Vice President ordered all Government agencies to carefully examine 
their regulatory processes and put all the regulations they have issued 
under the microscope. Their instructions have been to keep what works 
and eliminate or fix what does not.
  In February, the President announced the first benefits from this 
effort. The administration dramatically changed the Federal 
Government's approach to small businesses. Paperwork requirements were 
cut in half, and regulators were told to take a more practical approach 
to enforcement by stressing compliance over punishment.
  As part of this effort, the Food and Drug Administration has 
implemented some major reforms. The FDA eliminated 600 pages of 
burdensome regulations. The agency also made changes to its review 
process to help consumers get high-quality drugs and medical devices 
more quickly and more cheaply. These results are impressive, and soon 
other agencies will be announcing much-needed reforms.
  Of course, there is a limit to what the Administration can do on its 
own. Since many regulations result from statutes passed by Congress, 
Congress must also act. Earlier this year, we made a good bipartisan 
start by passing the Regulatory Transition Act. It would provide a 45-
day period during which Congress could review new regulations and 
potentially reject rules through a resolution of disapproval.
  Once that process is in place, Congress would better be able to 
fulfill its mission of regulatory oversight. But we also need to make 
improvements to ensure that the regulatory process works properly 
before rules are issued. That is why I have cosponsored the Glenn-
Chafee bill. In my view, the bill does a much better job of 
rationalizing regulations while protecting American families than the 
more drastic proposals by Senators Dole and Johnston.
  The Glenn-Chafee substitute is a tough, fair regulatory reform bill. 
It is not a catch-all for special interests. It would give agencies the 
responsibility to determine a schedule to review all major rules in a 
timely manner, and there would be no automatic sunset. Finally, 
judicial review would be more limited in scope, therefore preventing an 
inundation of frivolous challenges from overwhelming the courts.
  Many Senators have taken to the floor to highlight burdensome and 
ridiculous regulations. The Senator from Utah has even given us a top 
ten list.
  I would suggest that it is always easier to ridicule what does not 
work than it is to point out what does. It is a simple, and often 
effective, rhetorical tool to string together isolated abuses to give 
the impression that they are the rule, rather than the exception.
  I want to break from this practice, however, and speak about some of 
the success stories. American lives are strengthened and saved every 
day by good, sound regulations. ``Regulation'' has become a dirty word 
in some quarters, but we should remember what a regulation is: the 
means by which the law is implemented and enforced. Regulation is the 
tool the government uses to execute the people's will, as expressed 
through their elected representatives in Congress.
  Sound regulations have saved countless lives and prevented numerous 
injuries in the workplace, on the highways, in the air, and in the 
home. These regulation have also saved millions of dollars saved in 
medical costs, lost wages and reduced productivity from injury. They 
have also immeasurably improved our quality of life.
  I can speak to one example in particular. Since the passage of the 
Clean Water Act in 1972, water pollution control programs have been 
able to greatly improve our water quality everywhere, including in the 
Long Island Sound. The current water quality of the sound is directly 
attributable to these pollution control programs, which have been 
effective in the face of increasing population and activities in and 
around the sound.
  Environmental cleanup in the sound has led to increased tourism, 
increased property values, new industry and a better economy. However, 
the Long Island Sound cleanup is not finished. In fact, today it faces 
new challenges from residential, commercial, and recreational 
development. It is crucial that pollution control programs remain in 
force for the sake of the sound and those who live around it.
  I fear that continued attempts to clean up the sound would be 
undermined by the Dole-Johnston bill. In fact, the legislation could 
actually turn the clock back and reverse years of progress.
  I am also troubled by other provisions and their impact on Americans' 
health and safety. The Dole-Johnston bill is still ambiguous about what 
would become of rules currently in the pipeline--those that have been 
issued but have not yet taken effect. The bill is also unclear as to 
whether agencies would have to go back and redo risk assessment to 
comply with the complicated risk assessment provision.
  I also worry about the impact of this bill on the Occupational Safety 
and Health Administration's ability to prevent workplace injuries and 
deaths. OSHA is already unable to fulfil its mandate in a timely 
fashion. It took the agency 10 years, for example, to issue rules 
ensuring that workers would know about the dangers of the toxic 
chemicals in their workplace. These delays would grow immeasurably 
worse if, under this bill's provisions, we build even more bureaucratic 
delay into the system. In the meantime, countless workers could be hurt 
unnecessarily.
  While, I appreciated some changes made to the Dole-Johnston bill, I 
was equally disappointed that other amendments to strengthen meat 
safety, OSHA and safe drinking water standards failed. No one should 
have to live in fear of illness or death from the E. coli bacteria or 
tainted water. In 1993, Milwaukee drinking water became tainted and 
more than 100 people were killed and 400,000 people became sick. We do 
not want to do anything here that would limit our ability to prevent 
such tragedies in the future.
  I hope that in the coming days we can achieve a bipartisan consensus 
on regulatory reform. I believe that the Glenn-Chafee bill provides the 
best framework for these efforts, and I urge my colleagues to support 
its intent.
  Mr. SIMON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. SIMON. Mr. President, I ask unanimous consent to set aside 
temporarily the Glenn-Chafee amendment to offer an amendment by myself, 
Senator Hatfield, and Senator Reid.
  The PRESIDING OFFICER. Is there objection?
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, what is the subject of this amendment?
  Mr. SIMON. We are talking about regulations that we have passed that 
do not make much sense. We passed a law that among other things 
prohibited Members of Congress from writing recommendations. If you 
have a member of your staff who wants to get a civil service job, it is 
against the law for you to write a letter of recommendation. If we see 
a page here doing a great job, we cannot write a letter of 
recommendation. This simply permits us to do that, and I hope it could 
be disposed of without great debate.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mr. SIMON. I will be pleased to yield to my colleague.
  Mr. JOHNSTON. Mr. President, I am familiar with the general problem. 
Of course, all of us have run into this. I am less familiar with the 
solution, and I am totally ignorant of whether the committees of 
jurisdiction have had a chance to look at it and whether they approve 
or disapprove. I wonder if the Senator could withhold to a later status 
in this bill and see if this can be cleared. I see Senator Roth. I do 
not know whether that is within his committee of jurisdiction. Perhaps 
he can speak to it.
  Mr. ROTH. Reserving the right to object, Mr. President, I 
respectfully request that the Senator from Illinois withdraw his 
request.
  First of all, the amendment he is proposing is not germane to the 
legislation before us. It does represent a very considerable change in 
our civil service rules that are worthy of review. But I hope that 
rather than bringing it up at this time, this is a matter that could be 
reviewed by the Governmental Affairs Committee which has jurisdiction 
over the matter.

[[Page S 10123]]

  Mr. SIMON. Mr. President, with all due respect, I do not think the 
Governmental Affairs Committee, which created this law, is likely to 
repeal it. But I have talked to a number of my colleagues, and I think 
the sentiment in this body is overwhelming that we made a mistake.
  Let me tell you how I happened to get into this. This is a letter I 
wrote to Donna Shalala about a person who lives in an apartment 
building where we live:

       Dear Donna: I am enclosing a resume for Dennis Gowie who 
     was a hospital administrator in Washington, DC until the new 
     administration here took over.
       I do not know him well, but he lives in the same apartment 
     building that Jeanne and I live in, and he makes an excellent 
     impression and has a superior background.
       I don't know where or if you are able to use someone with 
     his background in your administration, but I think his 
     background is so rich in the health care administration field 
     that he is worthy of consideration.
           Cordially.

  I got the letter back with a letter saying I violated the law. A 
lobbyist, any lobbyist, can send a letter of recommendation for anyone, 
but if you have somebody working on your staff who is doing a good job 
and you want to send a letter of recommendation for a civil service job 
for that person, that is a violation of the law. We are in the process 
of talking about regulations that are ridiculous. This is a law that is 
ridiculous that is a regulation on us. I think we ought to get rid of 
it. I think this is a good time to do it. I am not trying to impose 
myself in the middle of this particular amendment, and I might say to 
my colleague from Ohio, I strongly support his amendment. But if I may 
ask my colleague from Delaware, if I were to ask unanimous consent to 
have this up on the floor of the Senate after the Glenn-Chafee 
amendment is disposed of, would that be satisfactory?
  Mr. ROTH. Let me answer the distinguished Senator this way. As he 
knows, we are having a very serious, a very important discussion on 
judicial review. So I think it would be unhelpful to suddenly turn to a 
matter that is not even directly related to the legislation before us.
  Second, I think we all agree this legislation on regulatory reform is 
among the most important legislation that shall come before us this 
year. For that reason, it concerns me if we begin to add amendments--
this would be the first--that are not related.
  I would be happy to assure the distinguished Senator from Illinois 
that we would be happy to take a hard look at this in committee. I have 
had a number of people mention the problems, the concern it causes 
them, but I think if we are going to change it--and perhaps we should--
then it should be done in a manner that is most constructive under the 
circumstances, rather than being done on an unrelated piece of 
legislation.
  Mr. SIMON. Mr. President, frankly, it is not satisfactory to me to 
have the committee take a hard look at it. I want to get a vote on it. 
We have crafted this very carefully, I want to assure my colleagues. In 
terms of it not being germane, the Senator from Delaware and I have 
voted for a thousand amendments that are not germane to legislation 
that is up. It is in a peripheral way germane.
  I will change my unanimous consent request, Mr. President. I ask 
unanimous consent that when the Chafee amendment is disposed of, the 
Simon-Hatfield-Reid amendment be up for consideration at that point.
  The PRESIDING OFFICER. Is there objection?
  Mr. JOHNSTON. Mr. President, why does the Senator not give us a 
little time to work this issue? I personally have no objection to this. 
Rather than seal in a nongermane amendment at this point--that may be 
tonight--we may be able to make some progress on some other amendments 
tonight. If my friend will withhold, he will have a right to bring up 
his amendment at some other time.
  (Mr. GRAMS assumed the chair.)
  Mr. SIMON. Mr. President, because I am interested in adopting this, 
and I am not trying to cause problems on the floor, I will withhold my 
request at this point. But I want to assure my colleagues on the floor, 
I am going to bring this amendment up one way or another on this bill 
before it passes.
  If I may add one other point, Mr. President, and I say to my 
colleague from Delaware, as well as Senator Glenn from Ohio, if there 
is some wording here that needs improvement, I am not wedded to this 
wording. We think we have drawn it very carefully. But if there is 
something that is not prudent here, what we say is that where there is 
on the basis of personal knowledge or records of the person furnishing 
we can make an evaluation of the work performance, ability, aptitude, 
general qualifications, valuation of character, loyalty, or suitability 
of such individual. I think those are the kind of things that should 
not present a problem. I hope we will do this.
  Let me just add, I am leaving this body. This is going to have a lot 
more to do with the future of Senator Roth and Senator Thompson and the 
distinguished junior Senator from Minnesota than it will for Paul 
Simon. But I want to be free if I have a good staff person or I know 
someone would be good for a job, to write a letter of recommendation. 
My experience is those letters do not mean that much, but at least I 
can get it off my chest. I want to have the right to write that letter 
and not just leave that right to lobbyists and others.
  Mr. THOMPSON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, I would like to address the subject of 
judicial review which my colleagues have been so eloquently discussing 
this morning. I think this, first of all, goes to the very heart of 
this legislation, because we can pass all of the requirements and all 
of the commonsense proposals that we want, but if it is left totally in 
the hands of the bureaucracy to decide whether or not they want to 
comply with it or how they want to comply with it, then it is 
meaningless. In other words, if there is not some semblance of judicial 
review, even for the most egregious conduct and outrageous decisions, 
it is, indeed, meaningless.
  Mr. President, this is a nation of laws, not of men and women, the 
bedrock of our country. Legislation gives tremendous authority to the 
executive branch. That is what this body, that is what the Congress of 
the United States does on a daily basis: It gives great authority to 
the executive branch to implement the laws that are passed.
  The bureaucracy, the administrative agencies--and I do not use that 
term derogatorily--but the bureaucracy works in that regard in adopting 
regulations to implement the laws that we pass. This is an awesome 
authority that we give to the executive branch.
  We have seen in times past in this country, and other nations, that 
power does tend to corrupt. Executive branch authority has to be looked 
at carefully; it has to be looked at constantly. Goodness knows, this 
body, in my brief observation, seldom has the opportunity for effective 
oversight.
  The Senator from Ohio made a very impressive statement on more than 
one occasion concerning the regulations of one particular regulation 
pertaining to the Clean Water Act--I believe, effluent emissions--where 
he said that from the well to the ceiling of this Chamber is 42\1/2\ 
feet, and those documents would go all the way from the well to the 
ceiling three times--three stacks of documents for one regulation.
  I am not sure the Senator would share the same conclusion that I 
would share from that. But, obviously, we do not have the time nor the 
inclination to go back and revisit the laws and revisit the 
regulations, certainly, that have been passed up until this time. What 
we can do is establish some rules of the road, interject some 
commonsense ways for the agencies to justify future rules, future 
regulations.
  Now, this authority that we give the executive branch is proper and 
appropriate in our constitutional scheme. That is what it is all about. 
We are supposed to have oversight of that. I think anyone who has spent 
any time here at all must acknowledge that that is a very tenuous 
situation at best in terms of effective oversight. We must look 
prospectively.
  So we have a system where citizens who are affected by this 
legislation, not just depending on Congress, but citizens affected by 
this legislation can come into court and say basically, ``We are not 
being treated right.'' That is all judicial review means. They come 
into the third branch of Government, 

[[Page S 10124]]
an independent branch of Government--the judiciary--to make a 
determination as to whether or not the citizen, the private concern, is 
being treated right.
  We can talk about special interests and all of that in a pejorative 
way, but there are a lot of small businesses out there, a lot of 
individuals, there are a lot of public interest groups who take 
advantage of judicial review on a daily basis. It is not just the 
corporate fat cats who are sitting back out there to be labeled as 
special interest to whom this is important. It is important to 
everybody. It is important to every citizen. And it is really strange 
and inappropriate, I think, if we carve out one or two little pieces in 
this entire administrative framework that we are dealing with here and 
say everyone has the opportunity to come into court except these 
particular individuals, or except in these particular circumstances, 
because we place so much confidence in the nameless, faceless 
administrators who come up with these analyses, or these rules, that we 
really effectively do not want any judicial review in this particular 
area.
  Mr. President, I do not share the confidence that the opponents of 
Dole-Johnston seem to have in the agencies. They do a lot of good work 
on many occasions. But we cannot give that kind of authority, 
unchecked, unreviewed, to anybody, including them.
  We hear a lot of talk about a ``lawyer's dream.'' We are concerned 
now that we are going to create new causes of action, we are going to 
provide a new access for somebody coming into court. I share that 
concern across the board. I think that in times past we have not paid 
enough attention to that fact. But it is a strange occurrence for us to 
all of a sudden be concerned about that in the middle of this debate, 
when we are trying to bring some commonsense reform to this regulatory 
maze that is costing every American family $6,000 a year, because this 
body, the Congress of the United States, as a whole, are the reasons 
for the litigation explosion in the Federal system.
  It is the laws that we create, giving judicial review almost on every 
occasion, that create all of the litigation and all of the new regs, 
and we could not fill in this Chamber with all of the legislation that 
we have passed that give people new causes of action and new motivation 
to come to court, and new ways to burden the Federal court system. If 
you have a civil case anymore in the Federal court system, and many 
places in this country, you may as well forget about it for a good long 
while. Under the speedy justice acts, criminal cases take precedence. 
And that is because of what we have done here in this body. Not only do 
we constantly create new causes of action in this body, but on many 
occasions we finance it ourselves. We not only say you can come into 
court and get judicial review, which effectively is being denied, I 
submit, by the Glenn-Chafee amendment, but we have created all sorts of 
legislation where the Government will either pay the attorney's fees, 
or there are attorney's fees shifting. In other words, what could be 
more of an inducement to people to bring lawsuits and to come with new 
litigation than to say you are going to get your attorney's fees paid 
for? Yet, we do that time and time again. We are the cause of all of 
that.
  There are the civil rights cases, which we are familiar with; Fair 
Housing Act, Fair Labor Standards Act; Age Discrimination in Employment 
Act of 1967; Equal Credit Opportunity Act; Civil Service Rehabilitation 
Act; Individuals With Disabilities Act; Religious Freedom Restoration 
Act; Violence Against Women Act. There are awards for attorney's fees 
in tax cases that we give to citizens if they prevail in certain tax 
cases. Awards for attorney's fees we give in certain lawsuits against 
the States, and in certain lawsuits against judges. We not only give 
them a cause of action, and we not only give them judicial review, we 
see that their attorney's fees are paid.
  There was the Federal Contested Elections Act; Government Employees 
Rights Act of 1991; Equal Access to Justice Act; Freedom of Information 
Act and Privacy Act; Government in the Sunshine Act; Whistleblower 
Protection Act of 1989; Civil Service Reform Act of 1978; NEPA; 
Commodity Exchange Act; Packers and Stock Yards Act; Perishable 
Agricultural Commodity Act; Federal Crop Insurance Act, Animal Welfare 
Act; Agricultural Unfair Trade Practices Act; Plant Variety; 
Immigration and Naturalization Act; National Aeronautics and Space 
Administration Act; National Defense Authorization Act; Bankruptcy Act; 
Federal Home Loan Bank Act; Home Owners Loan Act; Housing Act of 1959.
  These are all acts not only where we are creating new causes of 
action and giving people access to the court, in addition giving them 
judicial review, but we are seeing that their attorney's fees get paid 
if they prevail. That is a very loose definition.
  I will continue: National Housing Act; Federal Credit Union Act; 
Federal Deposit Insurance Act; Bank Holding Company Act; Bank Tying 
Act--whatever that is--Farm Credit Amendments Act; Real Estate 
Settlement Procedures Act; International Banking Act; Expedited Funds 
Availability Act.
  Mr. President, there are hundreds. I will not take the Senate's time 
with reading all of them. But there are literally hundreds of pieces of 
legislation that this body has created where not only do we create new 
causes of action and provide judicial review; no question is usually 
ever raised about full judicial review. All of these are important 
subjects. I am not saying they were bad legislation in every case; 
certainly not. I am just saying that it is mighty strange that in the 
middle of all of this, when we want to say let us supply a little 
common sense to the regulatory process, let us require a cost-benefit 
analysis, just put down on paper whether the benefits justify the 
costs--as we have seen here, we are not talking about a money situation 
here. Benefits are defined as social benefits, as well as economic 
benefits. Costs are defined as social costs--social costs, as well as 
economic costs; not only direct benefits and direct costs, but indirect 
benefits and indirect costs. What could give an agency more discretion 
than dealing with something that might be described as an indirect 
social benefit? That is great leeway.
  Yet, we want to limit judicial review when they make these 
commonsense assessments that we say since we cannot and will not go 
back to the 3-foot stack of regulations and deal with them, which is 
what we really ought to do, we are going to at least try to apply some 
commonsense standards as far as we go forward. That is all this is 
about. Judicial review is the norm. It is the way it ought to be. The 
Administrative Procedures Act provides broad, broad discretion and 
judicial review. We keep talking about this explosive litigation 
situation that is going to develop from all of this.
 Not so. We create no new causes of action with the Dole-Johnston bill.

  The judicial review is already contained in the substantive 
legislation. I must say, it seems in times past when we gave authority 
to an agency, we have readily granted judicial review. But when we are 
putting certain restrictions on an agency and making them justify what 
they do, some seem to want no judicial review.
  The opponents say not only too much litigation; second-guessing 
scientific opinions, the rulemakers will be tied up in knots. Well, the 
Senator from Louisiana, I think, has very, very effectively addressed 
most of those. I share his concern that if something is repeated long 
enough, saying that it will cause an explosion in litigation and that 
will tie the courts up in knots, some people will get to believe it. It 
is just not true. Repeating it does not make it true.
  Section 625, no new causes of action. Final agency action is the only 
thing that can be looked at. Cost-benefit analysis will be included in 
the directive. Only if the final agency action is arbitrary or 
capricious will it be overturned. In other words, no independent 
second-guessing or analysis of the cost-benefit analysis. It is just a 
part of the picture. It is part of the overall picture, and it can be 
considered. It can be looked at.
  Mr. President, I submit that this provision is narrower than the law 
is now. Traditionally, any procedure defect can be appealed and be a 
ground for upsetting the agency action. Here it is only if it is a part 
of an overall review, if the final agency action is arbitrary and 
capricious. It cannot be considered independently. Under the old law if 
something was faulty, if the cost-benefit analysis was faulty, that 
kind of a 

[[Page S 10125]]
defect would be reviewable and enough to overturn the opinion.
  Actually, it seems to me that as far as this new cost-benefit is 
concerned, we have a narrower scope review than we traditionally have 
for other defects in the process. Of course, 706 is just the same as 
under the Administrative Procedure Act that we have been dealing with 
for so many years, except with section (F).
  As I understand it, we have to look at (E) in conjunction with that. 
It is a substantial evidence test in (E), substantial support test in 
(F). Substantial evidence test, as I understand it, where there is a 
record administrative law judge, substantial evidence test is something 
that has been applied now for years and years on the record, and I 
think the thinking with (F) is apply that to the rulemaking process, 
the same kind of review, substantial support test, and do we want a 
rule that does not have support in the record in the rulemaking, 
substantial support? It is not a de novo review by any stretch of the 
imagination. The court must show deference to what the agency has done 
under that kind of scheme.
  Will there be more litigation? I submit certainly not. I submit 
nobody knows, certainly. Nobody knows. There is always litigation. 
There always will be litigation. Trying to pinpoint the cause for a 
particular lawsuit cause of action is a fruitless process.
  I submit a very good case could be made for the proposition that it 
will result in less litigation, Mr. President, instead of more, because 
now at least the courts have some fairly objective criteria to look at.
  Cost-benefit analysis: Do the benefits justify the costs? Are the 
costs justified by the benefits? I think it could go to make better 
rules. I think the agencies have been engaging in this process all 
along, anyway, in some rough form.
  Any rule that we put down, certainly, I hope that agencies would 
consider how much benefit are we going to get out of this and what will 
it cost? By putting it down somewhere--with the tremendous prejudice in 
favor of the agency action going in, the tremendous hurdles a 
petitioner has to overcome--putting it down somewhere and having 
developed some case law on the subject, and it becoming more objective, 
I submit that people would be less likely to attack it because it is 
less nebulous than it has been in times past.
  Will there be more litigation? There is very limited interlocutory 
review. Now, if an agency decides that something is not a major rule, 
it does not meet the $100 million threshold, then there is review under 
those circumstances. But I think the Senator from Louisiana hit it on 
the head. It looks to me to be in the interests of both sides, if the 
determination is made that it is not a major rule, to go ahead and get 
that resolved.
  Otherwise, we go on through the process, all the way to the end, get 
to the final rulemaking, get there, then an appeal is taken. Then if it 
is determined it was, in fact, a major rule, have to go all the way 
back, and it affects everything that has been done, and you have to 
start back from scratch.
  This is not a problem, interlocutory situation, that gives the 
petitioner some great advantage.
  What about second-guessing scientific study and that sort of thing? I 
submit, Mr. President, that right now we have courts in a position 
under the arbitrary and capricious standard and all the other standards 
under 702 that courts are making some kind of rough determination on 
scientific principles of some kind, scientific analysis, totally 
unequipped in many cases, I am sure, to do it. But under the Dole-
Johnston bill, we have peer review. We actually have an opportunity for 
the experts to come in and interject their analysis into the process.
  Again, my understanding is that this is nothing new in the well-
crafted rules and procedures that are done now under current law. Peer 
review is not a stranger--National Academy of Science--and the agencies 
are well equipped to do this peer review. They are well equipped to do 
the cost-benefit analysis. There is nothing new with regard to that. 
Now they must do it in every instance where we have a major rule.
  So the courts now are having to deal with this scientific evidence 
test. Actually, this legislation will assist the court because of the 
additional peer review. The courts will not be second-guessing the 
agency's actions here. I share with the proponents of the Glenn-Chafee 
substitute that we do not want to be able to have people come in and 
tie up legitimate rulemaking functions at the drop of a hat and stop 
everything in its tracks. Nobody is propounding that.
  What is being done here, it looks to me, the problem with it, it is 
such a modest proposal, it is such a modest first step to interject an 
element of common sense into a process that I think just about 
everybody in this country has concluded has gone too far. Every once in 
a while things gets out of hand. We have to get back toward the middle 
of the road a little bit. I think that is what this legislation does in 
a very modest way.
  Increased delay, tie the court in knots--it is simply not in the 
legislation. These objections cannot be identified and pinpointed with 
regard to any particular section in this legislation in the Dole-
Johnston amendment. Under ordinary circumstances, you cannot get a 
stay, you cannot come in, you cannot file a lawsuit and stop the 
proceedings. That simply does not happen except in rare circumstances.
  What are those circumstances? Same old, traditional circumstances 
that we have already had in other situations. That is, if a petitioner 
can overcome the very high burden of proving that he is likely to 
prevail ultimately in the case, if the petitioner can show that he will 
suffer irreparable injury, not just injury but irreparable injury, if 
he can show it is in the public interest, if he can do all of those 
things, he might stay the proceedings for a while. Would we not want 
him to?
  If petitioners can show that they are likely to prevail, that they 
are going to suffer irreparable injury, is there anything wrong, within 
that limited circumstance, with being able to have a stay? It is a 
very, very rare situation, indeed, where that would come into play. So 
there is no tying up of the courts. There is no stopping of the courts. 
There is no keeping the forward move of the rule from making progress.
  What are the hurdles? Look at a situation that a petitioner has. Look 
at what a petitioner has to go through in order to challenge a rule.
  First of all, you have the definition of benefit and the definition 
of costs that we referred to a little bit earlier. I think we need to 
go back to that, because I think we get away from that. The definition 
applies throughout for both subchapter 2 and 3. The definitions are 
ruling. The definitions are standard, and apply every time these terms 
are used anywhere in the act. It says:

       The term ``benefit'' means the reasonable, identifiable, 
     significant favorable effects including social, 
     environmental, health and economic effects that are expected 
     to result directly or indirectly from implementation of a 
     rule or other agency action.

  So, when people talk about seatbelts, or people talk about food, and 
people talk about all those things that are vital concerns to all of 
us--certainly you can consider the noneconomic benefits. You can 
consider the social benefits. You can consider the environmental 
benefits. You can consider all of the health benefits. And, if an 
agency does a halfway decent job of addressing that and putting it down 
on paper, look at the hurdles that a petitioner has to overcome in 
order to challenge that. Consider the court's natural hesitancy to 
second guess an agency under those circumstances; a natural hesitancy 
to second guess technical evaluations.
  Then you have the harmless error rule. Suppose you go through all 
that. OK, the agency messed up. OK, even by the loosest definition of 
benefit or cost, the benefits did not outweigh the costs so the 
petitioner has crossed that first hurdle. Then he has to get by the 
harmless error rule, and that is no mean feat. That has been with us 
for a long time. It has made a lot of agency actions prevail in 
circumstances they otherwise would not.
  So, those are the hurdles that a petitioner has. Now, under the Glenn 
substitute, first of all, for something that has to do with judicial 
review I am struck by the consistency of what is not subject to 
judicial review. I think we have five sections here and in four of them 
the emphasis is on what is not subject. 

[[Page S 10126]]

  Section 623(a): ``Shall not be subject to judicial review in 
connection with,'' et cetera.
  ``(b) shall not be subject to judicial review in any manner''
  ``(d) court shall not review to determine whether,'' et cetera.
  ``(e) shall not be subject to judicial consideration separate and 
apart,'' et cetera.
  I will go into the details of all this later. But is it not strange 
that in something that is supposed to deal with judicial review, that 
the entire emphasis seems to be on what is not subject to judicial 
review? It looks like we are leaving a very, very narrow window indeed.
  Let us look at the provisions of the Glenn-Chafee substitute. In the 
first place you have (b), ``any determination by designee of the 
President or the director that a rule is or is not a major rule shall 
not be subject to judicial review in any manner.'' It just stops in its 
tracks, if I understand it correctly. That can just stop everything in 
its tracks right there.
  It says in (e) that ``a determination by an agency that it is not a 
major rule shall be set aside by a reviewing court on clear and 
convincing evidence.'' But who gets to decide last? If an agency made 
this determination and the President or the director made a subsequent 
determination, or contemporaneous determination, would that not be the 
end of it?
  In other words, the executive branch has total discretion, it looks 
to me like, in determining whether or not the process goes forward in 
terms of cost-benefit analysis, risk assessment or whatever, because 
they can decide, no matter how clear it is to most people that it meets 
the $100 million threshold--they could just say that it does not and 
nobody can review that. Nobody can question that.
  Indeed, ``If a cost-benefit analysis or risk assessment required 
under this chapter has been wholly omitted for any major rule, a court 
shall vacate the rule and remand the case for further consideration.''
  In other words, if you have what has been decided and what has been 
determined is a major rule, therefore under the law requiring the 
agency to make the cost-benefit analysis, but the agency just says I am 
not going to do it, they suffer the severe penalty of having the court 
simply remand it back to them for further consideration. I do not know 
what happens if they do the same thing again and the court remands it 
back again, and again and again.
  The rest of it I think the Senator from Louisiana has addressed. It 
is essentially very similar to the Dole-Johnston bill in that basically 
it is still an arbitrary and capricious test. I did not even mention 
that in the hurdles that a petitioner has to overcome, which is a very, 
very tough test for a petitioner to have to overcome to prove that 
something is arbitrary and capricious.
  So, Mr. President, I think it just comes down to whether or not you 
want to do anything about this problem. I think it comes down to 
whether or not you want risk assessment, you want to have a cost-
benefit analysis. Because, if you do, it cannot possibly mean anything. 
It would be totally meaningless unless you have more of a redress for 
people who are aggrieved.
  I might point out, in this legislation business, it seems to me we 
often go off on the basis of whose ox is being gored at the moment. 
What if you had a President who did not like any rules? Should we cut 
off people, public interest groups, whatever, from judicial review and 
petitioning and doing what they would want to do in order to get 
effective rules passed and make sure they are not just dismissed out of 
hand and erroneous determinations as to whether or not something is a 
major rule? Some President could decide everything is going to be a 
major rule, no matter how minuscule it is. If he was really an enemy of 
rules and regulations, he could just decide everything is going to go 
be a rule and make everyone go through the process.
  It is a two-way street if we look at it that way, and I urge the 
Dole-Johnston amendment does that. It is a modest proposal to try to 
get our arms around, in some way, and make some progress towards 
interjecting some simple, some commonsense principles into this 
regulatory mess that we have gotten ourselves into and do not seem to 
know how to get out of that is costing the American taxpayers' $6,000 
per year per family and going up. And then get on about the business of 
passing laws that will be subject to real oversight. I think that is 
one of the most important provisions of this bill. I think it gives us 
another look at these rules that are going to be passed, now, and give 
us really an opportunity to focus on our oversight responsibility.
  We do pretty good at turning these laws out but it seems to me like 
we wake up a few years down the road and get a deluge of citizens 
coming in here saying you did not know it at the time but look what you 
have done to us. And then it is too late to do anything about the 
regulatory mess we have created.
  We have an opportunity here to do something about that and I urge the 
defeat of the Glenn-Chafee amendment and the adoption of the Dole-
Johnston amendment.
  I yield the floor.
  Mr. COCHRAN. Mr. President, we finally have, as the distinguished 
Senator from Tennessee said, the opportunity to legislate an end to the 
unnecessarily costly consequences of Federal Government regulations.
  This legislation that has been introduced by the Majority Leader, 
which I am cosponsoring, will make it necessary to consider the cost 
effectiveness of regulations that seek to manage the risks to health, 
safety, and our environment. In short, it will help ensure that the 
benefits derived from Federal regulatory actions justify their cost.
  The Federal regulatory burden has become too heavy and too expensive. 
There are several recent studies that confirm this. One is a March 1995 
publication of the Harvard School of Public Health which analyzed 200 
Federal programs and revealed that many highly cost-effective programs 
were not fully implemented, while other highly cost-ineffective 
programs were widely implemented. It suggested that a reallocation of 
resources to more cost-effective programs could save an additional 
60,000 lives per year at no increased cost to taxpayers or to the 
private sector. The conclusion was that we could save the same number 
of lives, but with a $31 billion annual savings to the American people.
  In an American Enterprise Institute policy paper, Christopher DeMuth 
has described Federal regulations this way, and I quote:

       They are much more costly than all the domestic 
     discretionary spending programs of the Federal Government 
     combined. Regulatory agencies can tax and spend freely in 
     pursuit of environmental quality, product safety, and other 
     regulatory goals, and the costs they impose are free of the 
     budget and appropriations controls that constrain spending 
     programs.

  That is the end of the quote.
  The Heritage Foundation's ``A Citizens Guide to Federal Regulation'' 
estimates that the cost of Federal regulation to the economy exceeds 
$500 billion, or about $5,000 per household each year. EPA has 
estimated that environmental regulations alone in 1990 cost the U.S. 
economy about $115 billion. As a result of the Clean Air Act amendments 
and other new requirements, spending by business on environmental 
protection is expected to exceed $200 billion annually within 5 years.
  In 1993, the President's National Performance Review estimated that 
complying with Federal regulations cost the private sector $430 billion 
per year. This is almost 10 percent of the gross national product.
  One of the more frequently cited economists on the costs of 
regulation, Thomas Hopkins of the Rochester Institute, has estimated 
the direct Federal regulatory burden for 1994 to be approximately $630 
billion.
  So whatever estimate you choose, it is a big one. The burden is 
enormous and, without action on our part, it is only going to get 
bigger.
  One sector of our economy that has come under special pressure from 
environmental and related Federal regulations is American agriculture. 
Excessive regulation of agriculture has become in some instances 
counterproductive to our efforts to maintain the safety and integrity 
of the U.S. food supply.
  Some Federal regulations not only impose unnecessary and burdensome 
costs on farmers, but they make our farm and food products less 
competitive in world markets. The Delaney clause, for example, enacted 
in 1958, 

[[Page S 10127]]
has been strictly interpreted and enforced in such a way that it has 
imposed enormous expenses and burdens while providing very little 
benefit to the public. In many instances, the Delaney clause has become 
an obstacle to the implementation of sensible food safety policy 
because it has prohibited the use of production efficiencies that pose 
little or no risk to the public.
  This problem was compounded by the 1992 Ninth Circuit Court of 
Appeals ruling which invalidated the EPA's negligible risk 
interpretation of the Delaney clause and required a zero risk 
interpretation that threatens to restrict the use of up to 80 widely 
used crop protection tools. These tools are important in the production 
of a safer, abundant, and affordable U.S. food supply.
  EPA Administrator Carol Browner has acknowledged that the pesticides 
affected by this recent court decision pose no risk to public health. 
Lynn Goldman, Assistant Administrator of the EPA, has admitted that the 
Delaney clause is an outdated approach for protecting consumers from 
pesticide residues and that the loss of selected pesticide uses may 
affect the price or seasonal availability of particular commodities.
  Furthermore, in 1993, the EPA stated that the potential economic 
impact of a strict interpretation of the Delaney clause could reach $1 
billion per year.
  In rice-producing States, like my State of Mississippi, uncontrolled 
rice plant diseases can lower crop yields by 75 to 80 percent. The 
fungicide benomyl, which is used to control rice blast on 15 to 30 
percent of the rice acres in the southeastern States, is the only 
fungicide registered for that purpose. Under a strict interpretation of 
the Delaney clause, EPA intends to prohibit the use of benomyl on rice. 
This will result in higher costs to farmers and consumers and will 
provide no real improvement in food safety.
  Mr. President, the outdated Delaney clause rests on a flawed premise. 
It assumes that a carcinogen at any level of exposure can cause cancer. 
Because of recent advances in research, we know that premise is wrong. 
With current technologies that allow the detection of minute quantities 
of potential carcinogens that were previously undetectable, the number 
of substances subject to the Delaney clause expands with every advance 
in analytical chemistry. We are now able to discover in food previously 
undetectable trace levels of materials used in production and 
distribution that are not added to food in any conventional sense, yet 
are food additives under the law.
  Reform of the Delaney clause, as provided for in this legislation, is 
essential to preserving a safe, abundant, and affordable U.S. food 
supply. And it is long overdue.
  Numerous other excessive and costly regulatory burdens imposed on 
American agriculture will also be relieved by this legislation. In a 
recent Washington Times op-ed article, I described several examples 
where the Department of Agriculture, the Department of Interior, and 
other Federal agencies have gone beyond the intent of Congress in the 
regulatory requirements imposed on agriculture.
  The Farm Bureau Federation estimates that U.S. agricultural interests 
spend between $18 and $20 billion per year complying with Federal 
regulations. This amounts to roughly 35 percent of total net farm 
income in our country.
  The Delaney clause, and all the other Federal regulations, that are 
squeezing the American farmer and food industries must be subjected to 
a reasonable, fair, and sound science-based assessment of the real 
risks to safety, health and the environment.
  While such reform will help the entire economy, it will help U.S. 
agriculture in particular, and it will reduce costs to consumers 
without endangering their health or our environment.
  Mr. President, the American people want reasonable reform of the 
current regulatory system. This legislation provides such reform, and I 
urge my colleagues to support it.
  I also ask, Mr. President, unanimous consent that the op-ed article I 
mentioned be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, April 4, 1995]

                           (By Thad Cochran)

                     Regulatory Relief for Farmers

       The regulators have run amok in America and nowhere have 
     things gotten more out of control than on the farm.
       As long as the two key ingredients in food production 
     remain land and water, agriculture will be in the eye of the 
     environmental storm. But it is not--and has never been--a 
     struggle between pro- and anti-environmental forces. As 
     entrepreneurs whose very livelihood rests on the careful 
     stewardship of an ecological system, farmers have long 
     supported measures to protect our natural resources. But 
     those same farmers, who are already up against the 
     uncertainties of the weather and heavy foreign government 
     subsidies, now increasingly have to ``do battle'' with 
     regulators in Washington.
       The reason? Because in too many cases, regulators at the 
     Environmental Protection Agency, the U.S. Department of 
     Agriculture, the Interior Department and other agencies have 
     gone far beyond the intent of Congress.
       In an effort to produce a better coordinated approach, EPA 
     has combined, or ``clustered,'' certain air and water 
     standards. The goal of avoiding incompatible and 
     contradictory rules is laudable. But the result is another 
     case of regulatory overkill.
       EPA's ``cluster rule'' for the pulp and paper industry is 
     the most costly environmental rulemaking ever proposed for a 
     single industry. It is estimated that compliance with this 
     rule will cost more than $11 billion despite the solid 
     progress already made by forest and paper companies. The 
     industry, for example, without the cluster rule has reduced 
     dioxin in effluent by 92 percent since 1988.
       The treatment of wetlands is another case in point. Despite 
     a recent Memorandum of Agreement among several federal 
     agencies, the process of defining a wetland and delineating 
     sites remains confusing and contentious. Farmers now 
     dutifully file requests for permits to make modifications to 
     portions of their own property that have been designated 
     wetlands. Almost half of the applications filed for a permit 
     involve an impact on less than one acre.
       Bob Floyd of Muncie, Ind., had a ``wetland'' mysteriously 
     appear on his property when a local business accidentally cut 
     a drainage pipe.
      Federal regulators swooped in to protect this ``wetland'' 
     and forced the 80-year-old farmer to stop farming. Because 
     of this wetland area (which has since dried up), Mr. Floyd 
     may have to sell the land his family had farmed for a 
     half-century.
       This might be funny if it were an isolated incident. But it 
     is not. At a Senate Agriculture Committee hearing in 
     February, witness after witness came forward with examples of 
     farmers tangled in red tape, thousands of dollars incurred in 
     filling out forms and family farms being threatened by the 
     Endangered Species Act or the Clean Water Act or some other 
     regulatory requirement.
       The American Farm Bureau Federation estimates that U.S. 
     agricultural interests spend between $18 billion and $20 
     billion per year complying with federal regulations. To put 
     things in perspective, that figure is roughly 35 percent of 
     total net farm income in the United States. If this estimate 
     is correct, and if anything it is probably low, farmers spend 
     $2 complying with government mandated regulations for every 
     $1 they receive in price supports.
       Clearly, things have gotten seriously out of hand. 
     Fortunately, the utter frustration with this and other 
     problems manufactured in Washington was powerfully 
     communicated through the elections last November.
       Congress is now under new management--and a wide range of 
     issues, including the need for regulatory relief, are being 
     addressed. Last month the Senate Government Affairs Committee 
     reported two bills (S343 and S291) which would require 
     federal regulatory agencies to prepare a cost-benefit 
     analysis (for major regulations) and incorporate that 
     analysis into the rulemaking process. Before new rules could 
     take effect, federal agencies would have to (1) determine 
     that the benefits outweigh the costs, and (2) determine that 
     the proposed rule will provide a greater benefit to society 
     than any other alternatives.
       If this all sounds like plain old common sense, the 
     similarity is intentional. We have gotten to the point in 
     this country where farm and landowners are almost considered 
     guilty until they can prove their innocence. The burden of 
     proof should be on the regulator and the place to start is to 
     require the regulators to prove that the rules are necessary, 
     that they benefit the public at large and generally pass the 
     common-sense test.
       All this is compounded by overlapping, and in some cases 
     competing, jurisdictions among federal agencies. It is common 
     for a farm enterprise or agriculture business to have to deal 
     simultaneously with the EPA, the Army Corps of Engineers, the 
     Transportation Department, the Agriculture Department, the 
     Occupational Safety and Health Administration, and others.
       There is a groundswell of support in Congress to slow the 
     regulatory machine until Washington can ``get its act 
     together.'' The House of Representatives has already passed a 
     bill to place a moratorium on significant regulations, 
     retroactive to November of last year. A week ago, the Senate 
     passed legislation giving Congress 45 days to review proposed 
     major regulations. The Senate bill establishes a ``fast 
     track'' review process and provides that any regulation can 
     be blocked if both the House and Senate disapprove it 

[[Page S 10128]]
     within the 45-day time frame. The congressional review would apply not 
     only to any future rulemaking but retroactively to any 
     significant regulation issued since Nov. 20, 1994.
       Obviously, the differing House and Senate bills will have 
     to be reconciled in conference; but it is clear we are going 
     to restrain the regulators.
       Even though commodity prices generally were solid last 
     year, net farm income is at its lowest point in a decade. If 
     American agriculture is to prosper, it will have to increase 
     productivity and capture new foreign markets. That is a 
     challenge under normal circumstances. But it will be almost 
     impossible if the American farmer, increasingly tangled in a 
     destructive web of red tape, is forced to spend a third of 
     his net income complying with government rules. 
     Unfortunately, that is the track we are on in this country. 
     It is a course that I and many others in Congress are 
     determined to reverse.

  Mr. ASHCROFT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, I thank the Chair.
  It is a pleasure to rise today to discuss with you an opportunity to 
provide relief from many of the threats to the safety, security, and 
well-being of those individuals who populate our urban centers. Our 
cities today, especially our inner cities, have become areas of 
hopelessness and decay and despair.
  Consider these facts:
  America's urban areas suffer a murder every 22 minutes, a robbery 
every 49 seconds, an aggravated assault every 30 seconds. In a survey 
of first and second graders in Washington, DC, the Nation's capital, 31 
percent reported having witnessed a shooting; 39 percent said they had 
seen dead bodies; 40 percent of low-income parents worry a lot about 
their children being shot, compared to 10 percent of all parents who 
worry about their children being shot; 1 out of every 24 black males in 
this Nation, 1 out of every 24 black males in America, will have his 
life ended by a homicide.
  A report in the New England Journal of Medicine stated that a young 
black man living in Harlem is less likely to live until the age of 40 
than a young man in Bangladesh, perhaps the poorest country on Earth.
  The roots of these pathologies are various. They are at least partly 
cultural, partly economic, and partly social. These challenges, these 
problems, are about values. They are about knowing right from wrong. 
But they also have something to do with hope and meaning. For too many 
of our inner city residents today, hope and meaning and opportunity, 
are unknown words of uncertain origins. Many people are born, live, and 
die without ever knowing what it is like to have a job, to feed a 
family, and to fulfill their dreams.
  In a number of the high schools in central cities, for example, the 
dropout rate rises as high as 80 percent. In 1990, 81 percent of young 
high school dropouts living in distressed urban areas were unemployed. 
In that same year, more than 40 percent of all adult men in the 
distressed inner cities of America did not work, while a significant 
number worked only sporadically or part time. Today, half of all 
residents of distressed neighborhoods live below the federally defined 
poverty threshold. In 1993, that was $14,763 for a family of four.
  Why do we have these problems in our inner cities? Well, as I have 
indicated, there are a variety of reasons. But I submit that one of the 
significant reasons for all of these facts is what I would call a 
regulatory redlining of our urban centers, a series of pervasive 
regulations promulgated by a variety of agencies that have literally 
driven jobs from the center of America's urban environments. As a 
matter of fact, the older the site is, the longer there has been 
industry, the longer there has been manufacturing, and the longer there 
has been industrial activity, the less likely the site is to qualify 
with and escape from the kind of onerous regulations which drive away 
jobs in those settings.
  As well meaning as many regulations may have been, the reality is 
that they have been incredibly destructive of opportunity in our inner 
cities.
  Now, there is a great debate about regulation and the regulatory 
burden in America. But the people who live in our inner cities bear not 
only their portion of the $600 billion in regulatory costs that are 
built into our products, they also experience and sustain a cost of 
regulation which is substantially higher in many circumstances. It is a 
cost of lost opportunity. It is a cost of poor health. It is a cost of 
the lack of personal security and safety. It is truly a major 
challenge.
  This last year, I had the opportunity to spend days during the year 
working in different settings around the country. I was delighted to 
work in one manufacturing concern in the city of St. Louis. It was 
called the Anpaul Window Co. They make windows for home construction, 
for remodeling as well as new construction. It is a thriving business, 
about 40 employees, one of those small business Horatio Alger stories 
that inspire us all.
  I noted when I went to spend my day there making windows with its 
work force, that well over half the employees are minorities. It was a 
good work force, very productive. The business was thriving. As a 
matter of fact, it was growing. And it became clear that the success of 
the business was going to be a part of its downfall, because they 
needed to expand. And they could not expand on their site in St. Louis 
because of regulations. There were four EPA test wells around the 
facility, and the owner said he would not take that facility on a bet. 
He simply could not expand on that site.
  So in order to expand--and I should also mention that the building 
had been designated as historic and the doorways were not wide enough--
the owner of the business had to move from the city, in the urban 
center of St. Louis, where the challenges are strong and the 
pathologies are very pervasive, where we have all the problems that 
attend the urban core of America's cities. And in order to grow and in 
order to be what they wanted the business to be, they had to move the 
business to a suburban setting 50 miles from St. Louis.
  I thought to myself, here is the Federal Government, which should be 
finding a way for the people in the very heart of our cities, who have 
families in need of the income and support, who have young minds that 
need the example of working parents, who have the potential but do not 
have the productivity, actually working against economic stability. And 
I thought the reason we do not have the productivity is too frequently 
the onerous rules and regulations that have finally accumulated at the 
core of our urban centers. Regulations that were designed to promote 
health and safety and well-being, have redlined development out of our 
urban centers and have sent development and jobs packing to the green 
fields of suburbia. They have left an empty, hollow core in the urban 
centers of America and have defined a circumstance where 1 in 24 black 
males will probably be shot at some time during his life, according to 
the statistics we read.
  I thought to myself, these are well-intentioned regulations, the 
regulations about cleanup and the fact that you should be able to eat 
the dirt in order to avoid being poisoned by contamination. But the 
truth of the matter is that the regulations in these older parts of 
Missouri's cities and of America's cities drive development out of the 
place where we need development most.
  They do so with very interesting and laudable concerns about the 
environment and about health and safety. But, frankly, the statistics 
tell us that the individuals who are poor and inhabitants of our urban 
centers have a lot more to worry about in lead poisoning from a .38 
than they do from other contaminating sources. And the truth of the 
matter is we have to find a way to bring jobs back into our cities. The 
risks associated with unemployment are very substantial, they are much 
greater than the risks associated with a door that may be 36 instead of 
38 inches wide, or do not comply with a particular statute. The risk of 
being shot in a drive-by shooting is much more pressing and demanding 
and challenging than the risk of being contaminated by dirt beneath the 
parking lot, especially dirt which was contaminated in some previous 
industrial experiment.
  Under the guise of noise abatement, we have merely exchanged the 
sounds of productivity for the sounds of silent factories. The crack of 
cocaine has been the sound of productivity in our cities' centers. The 
wail of a family in the wake of a siren, the echoing clang 

[[Page S 10129]]
of a cell door--those are the sounds that have abated the noise of 
factories, and I think we need to look carefully at what the 
comparative risks are in these cases.
  We literally have a substantial group of people in this country at 
the core of our urban centers and in our cities, whose opportunities 
have been diminished, whose safety has been impaired, whose health has 
been undermined, whose security has been threatened, and whose 
longevity has been shortened because of well-meaning but misapplied 
regulations.
  Our challenge is to find a way to make our urban centers places where 
people can thrive again. But inappropriate, or excessive regulation, 
without understanding the real risks that exist in the center of our 
cities, make that a very serious challenge.
  That is why I am going to be proposing an amendment to this 
Regulatory Reform Act which I will entitle ``The Urban Regulatory 
Relief Zone'' amendment. This amendment will provide an opportunity for 
the mayor of a city, any city over 200,000, to appoint an Economic 
Development Commission. This commission would have the chance to assess 
regulations which impair the health, safety, and well-being of the 
citizens by keeping jobs out of the zone; and to weigh whether or not 
abatement and waiver of those regulations could give rise to an influx 
of opportunity which would provide an improvement in the health, an 
improvement in the security, an improvement in the education, and an 
improvement in the longevity of the individuals in that zone.
  I very seriously hope that these commissions of economic development 
would have a view toward mobilizing the resources, not just as it 
relates to the Federal Government and Federal regulations, but as they 
would relate to State and local regulations as well.
  It is time for us to understand that regulations, sometimes 
misapplied, have effectively redlined development out of our inner 
cities and subjected our inner-city population to a set of risks that 
are far greater than the risks which the regulations sought to abate. 
It is time to empower cities to apply for such waivers. It is time to 
say to the cities, ``We will let you help make a decision here about 
what the real well-being of your citizenry is.''
  Then the commission would send that waiver application to the Federal 
Government and ask that the approval from an appropriate agency be made 
in order to protect the city from further harm. In my judgment, this is 
a chance for us to change the way in which regulation has literally 
created a crisis, or participated in the creation of a crisis, at the 
center of American cities. We can no longer afford regulations which 
redline American cities away from development.
  We have to give cities a chance to say to individuals: ``You can come 
in here, you don't have to be responsible for all the past sins of 
prior incarnations of industry here; you don't have to make sure the 
dirt under your parking lot could be eaten by an individual for his or 
her entire 70 years of existence. We want to have you here because we 
know that an employed person is safer than an unemployed person; an 
employed person, the statistics tell us, is healthier than an 
unemployed person; that employed people are far less likely to be 
killed in drive-by shootings than unemployed individuals; that where 
there is economic vitality and industry, there is a far greater chance 
that the young people will persist in their education, avoiding the 
dropout situation; and that we will upgrade what happens in our very 
inner cities.''
  I believe that it is time for us to look at those regulatory concerns 
as it relates to the well-being of the individuals in the areas in 
which those regulations are imposed. Where there are impositions of 
regulations which actually undermine the safety, undermine the 
security, undermine the employability of individuals, where the 
imposition of a regulation does not enhance safety or security or 
health or well-being or longevity, it should be an option that the 
Economic Development Commission of that particular urban center could 
submit an application to the Federal Government and say, ``Why don't we 
abate this particular requirement, because in so doing, it will elevate 
the opportunity of our citizens to be productive, to be healthy, to be 
secure and safe, to be examples in their community for the kind of 
industry and productivity which will inspire young people to stay in 
school and inspire individuals to have hope and to understand the 
meaning which can change the destiny of the inner cities of America.''
  Mr. President, I thank you for this opportunity. I look forward to 
submitting the urban regulatory relief zone amendment to this 
legislation in the hours ahead, and I hope that we will have the good 
judgment to share with the people of the United States the opportunity 
to make sound decisions about improving the standing of those who are 
at peril in our inner cities, the core of our largest urban centers. 
And I hope that we will give them the opportunity to get relief when 
that relief will increase their likelihood for safety, for health, for 
security, for productivity and for longevity.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Abraham). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GLENN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GLENN. Mr. President, we have talked about other costs, we have 
talked about complexities, we have talked about the costs of business, 
we have talked about costs of everything except costs to the Federal 
Government of this legislation. It seems to me that in any 
consideration of this legislation, that has to be taken into account.
  I do not know exactly what it will cost the taxpayers for the Dole-
Johnston bill to be carried out by the agencies as it stands right now. 
But I would like to read a letter to the chairman of the Judiciary 
Committee, Senator Hatch, from the Executive Office of the President, 
Office of Management and Budget on July 7. It applies to the original 
Dole bill. There have been some changes made since this letter was 
written, but I think the changes that were made make it even more 
expensive. But I would like to read this letter in its entirety, 
because I think it is extremely important that everyone understand 
exactly what it is we are getting into.
  Alice Rivlin, Director of the Office of Management and Budget, writes 
as follows:

       Dear Mr. Chairman: On April 26, 1995, the Senate Judiciary 
     Committee reported S. 343, the ``Comprehensive Regulatory 
     Reform Act of 1995,'' for floor consideration. The 
     Congressional Budget Office estimated that the bill, if 
     enacted, would impose additional discretionary costs of at 
     least $180 million annually. We have worked over the last 
     several weeks with both the program and the budget offices of 
     agencies with major regulatory programs, in order to arrive 
     at our own estimate of the potential costs of the bill as 
     reported by the Judiciary Committee.
       CBO indicated in its analysis that few of the agencies had 
     sufficient time to determine the additional costs that the 
     bill would impose. Further, it assumed that the sole feature 
     of S. 343 that would make issuing new regulations more costly 
     was the lowering of the threshold for cost-benefit analysis 
     to $50 million. Our request to the agencies, however, asked 
     them to consider not only the lowering of the threshold but 
     also the many additional analytic steps, such as risk 
     assessment and peer review, that S. 343 would require 
     agencies to undertake in situations where they are not now 
     carried out. In addition, our analysis, unlike CBO's, 
     contemplated the additional costs that S. 343 would impose, 
     both by significantly expanding existing litigation 
     opportunities and by substantially expanding the coverage and 
     the requirements of the Administrative Procedures Act. Our 
     analysis, unlike CBO's, also included the costs involved in 
     implementing the many new petition processes that S. 343 
     would create for reviewing existing regulations.
       Based on our more extensive analysis, we have arrived at a 
     cost figure that is significantly larger than CBO's. Our 
     preliminary estimate is that S. 343, as reported by the 
     Judiciary Committee, could impose discretionary costs of 
     approximately $1.3 billion annually and consume the time of 
     approximately 4,500 full-time employees. Although there have 
     been some modifications made to the bill since it was 
     reported by the Judiciary Committee, we believe this 
     information remains useful in light of CBO's estimate.
       I hope this information is useful to you as S. 343 
     approaches the floor.
           Sincerely,
                                                     Alice Rivlin,
                                                         Director.

  I ask unanimous consent that a copy of this letter be printed in the 
Record.

[[Page S 10130]]

  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

       Dear Mr. Chairman: On April 26, 1995, the Senate Judiciary 
     Committee reported S. 343, the ``Comprehensive Regulatory 
     Reform Act of 1995,'' for floor consideration. The 
     Congressional Budget Office estimated that the bill, if 
     enacted, would impose additional discretionary costs of at 
     least $180 million annually. We have worked over the last 
     several weeks with both the program and the budget offices of 
     agencies with major regulatory programs, in order to arrive 
     at our own estimate of the potential costs of the bill as 
     reported by the Judiciary Committee.
       CBO indicated in its analysis that few of the agencies had 
     sufficient time to determine the additional costs that the 
     bill would impose. Further, it assumed that the sole feature 
     of S. 343 that would make issuing new regulations more costly 
     was the lowering of the threshold for cost-benefit analysis 
     to $50 million. Our request to the agencies, however, asked 
     them to consider not only the lowering of the threshold, but 
     also the many additional analytic steps--such as risk 
     assessment and peer review--that S. 343 would require 
     agencies to undertake in situations where they are not now 
     carried out. In addition, our analysis, unlike CBO's, 
     contemplated the additional costs that S. 343 would impose 
     both by significantly expanding existing litigation 
     opportunities and by substantially expanding the coverage and 
     the requirements of the Administrative Procedure Act. Our 
     analysis, unlike CBO's, also included the costs involved in 
     implementing the many new petition processes that S. 343 
     would create for reviewing existing regulations.
       Based on our more extensive analysis, we have arrived at a 
     cost figure that is significantly larger than CBO's. Our 
     preliminary estimate is that S. 343, as reported by the 
     Judiciary Committee, could impose discretionary costs of 
     approximately $1.3 billion annually and consume the time or 
     approximately 4,500 FTEs. Although there have been some 
     modifications made to the bill since it was reported by the 
     Judiciary Committee, we believe that this information remains 
     useful in light of CBO's estimate.
       I hope this information is useful to you as S. 343 
     approaches the floor.
           Sincerely,
                                                  Alice M. Rivlin,
                                                         Director.

  Mr. GLENN. Mr. President, let me further comment on this. In the bill 
as it originally came out, CBO estimated $180 million. OMB analyzes 
what would occur here with the additional petition processes and so on, 
and after canvassing some of the agencies, as Director Rivlin says, as 
much information as they could get, estimates that it would cost about 
$1.3 billion and with 4,500 full-time employees.
  Let me point something out. Their analysis was based on the $50 
million base, and since that time, the Nunn amendment, which was added 
to this, adds a substantial number of regulations that would have to be 
reviewed. In the original legislation that was addressed by Director 
Rivlin, major rules would probably have been somewhere between 200 and 
500, something like that. We do not know exactly, of course.
  Now, under Glenn-Chafee, the major rules are estimated to be between 
100 and 200. With the Nunn amendment addition, the estimate is to go up 
to between 500 and 800 rules that would have to be reviewed. The Rivlin 
estimate from CBO of $1.3 billion in annual costs and the time of 
approximately 4,500 full-time employees to comply with S. 343 was made 
before the Nunn amendment on small business was passed. So that at 
least doubles the number of rules that would have to go back for 
reconsideration, with all the analysis that goes along with that.
  I know that just the number of rules cannot be equated directly to a 
specific budget figure. But I think it is fair to say that the cost of 
the bill will be similar to the cost of the Dole bill, as it emerged 
from the Judiciary Committee, which is $1.3 billion. You have to add 
onto that the estimate of approximately doubling the number of rules 
and regulations that would have to be reviewed again, if you add the 
additional requirement of review put forward by the Nunn amendment. I 
am not saying it would double that $1.3 billion, but it certainly it is 
going to add a considerable amount onto it. I think it would probably 
add at least half to it. I do not base that on anything except to say 
that if you double the number of rules, we should add another $400 or 
$500 million onto that $1.3 billion. It seems that would be logical.
  The point I am making is that we do not get this for free. We want 
regulatory reform. But at the same time, a vote for the Dole-Johnston 
bill is a vote to spend a minimum of $1.3 billion, by OMB estimates, in 
additional Government paperwork. What reform. That is not much of a 
reform, it seems to me.
  So I think we have to think about this. We have not provided anywhere 
in this legislation for that $1.3 billion annually that would be 
required, nor for the 4,500 full-time employees. We are in the process, 
as a result of the President's national performance review, of reducing 
the civil service rolls in this country, and doing pretty well with 
that reduction, also. They are trying to cut down 272,000 civil service 
positions over a 4-year period. The last count I had, as of about 30 
days ago, we had actually reduced around 110,000 and are on schedule to 
probably accomplish that full 272,900 reduction by the end of this 
year. That comes at a time when, at least in these departments, we are 
going to have some 4,500 additional FTE's just to carry out the 
analysis that would be required by the Dole-Johnston bill, at a cost of 
about $1.3 billion, and that was before the Nunn amendment took the 
threshold way down, and probably, as near as we can estimate, doubled 
the number of reviews that would have to be made.
  So I think, as we consider this, we want to consider whether we are 
also going to up the appropriation, whether that would be required, 
whether we are going to up the number of FTE's to do the job that would 
be required on this legislation.
  I yield the floor.
  Mr. ROTH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. ROTH. Mr. President, I would just observe that the additional 
cost identified by the distinguished Senator from Ohio as applying to 
the Dole amendment would also apply to the Glenn-Chafee amendment. My 
reason for stating that is that the threshold for a major rule in the 
Dole-Johnston amendment has been increased to $100 million. That, of 
course, is exactly the same as the threshold for the Glenn-Chafee bill.
  I also point out that there is no question, at least in my judgment, 
that the Nunn-Coverdell amendment--the amendment offered by the 
distinguished Democrat from Georgia--would also be offered to amend the 
Glenn-Chafee bill if it were believed that that legislation was going 
to successfully move forward.
  So, in large part, either proposal will face some increased cost. As 
I say, in my judgment, it would be in somewhat the same ballpark. But I 
think the important point to understand is the cost of the current 
regulatory maze of the private sector and local government. It is 
estimated that the current regulatory requirements cost this country 
something like $600 billion a year,
 a very substantial amount.

  It is further estimated that this roughly breaks down to a cost of 
$6,000 per American family. Again, a very substantial cost to the 
typical American family.
  One of the goals of the legislation that we all on both sides of the 
aisle are in support of in either amendment, agree that regulatory 
reform is critically important. One of the principal purposes of our 
legislation is to get a better bang for the buck.
  Hopefully, we can do even a better job in providing clean air and 
clean water, at a lesser cost, because of the regulatory reforms we are 
proposing.
  While it may be there may be some additional cost on the Federal 
Government, that should be more than substantially offset by the 
benefits and lesser costs that will be experienced by the private 
sector.
  For that reason, while it is true that regulatory reform may result 
in some additional cost to the Federal Government, that is 
substantially true of both proposals, whether one is supporting the 
Dole-Johnston amendment or the Glenn-Chafee.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call.
  Mr. LIEBERMAN. 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. LIEBERMAN. Mr. President, I rise to speak about the bill before 
the Senate, S. 343, and the vote that will 

[[Page S 10131]]
occur at 6 o'clock p.m., a little more than half an hour from now, 
asking that we invoke cloture on this bill.
  Mr. President, the last week has seen an intensive debate and a very 
thorough debate on not just the bill but on the values and ideals and 
processes that underlie our whole regulatory process.
  While I feel from my perspective that we have made some progress, at 
least by my standards, have improved the bill, I intend to vote against 
cloture because I still believe that this bill, as amended, so 
fundamentally alters the regulatory process and increases the obstacles 
and hurdles within that process, that it does damage to the laws--the 
public health, consumer protection, environmental protection laws--that 
underlay those regulations.
  Mr. President, this has been, I think, a very important debate in 
which, in general terms, all Members here in the Chamber have expressed 
our support of two basic goals. One is to acknowledge that the 
regulatory process in many ways has grown top heavy.
  Senator Hatch has given the list of the bottom 10 regulations which 
often seem silly and off the mark. Senators Glenn and Kerry and others 
have occasionally set the record straight on some of those bottom 10.
  The underlying point of Senator Hatch's list, I think, is agreed to 
by everyone here, which is that in some sense our regulatory process 
has become too complicated. It takes too long to render decisions. It 
often costs more than it should cost.
  I think we also have another set of values that we share. This is 
where we part company. Some think the reforms of the regulatory process 
get in the way of the protective goals of the underlying environmental 
protection, consumer protection, public health and safety laws that 
generate those regulations.
  Remember, the regulations do not arise out of nowhere. They arise, 
for the most part, out of laws that we adopt. We adopt those laws 
because we are responding to problems. We are, in the best exercise of 
governmental authority, making judgments about certain threats to the 
well-being of people in this country that they cannot protect 
themselves from.
  In some measure, in our increasingly complicated world--much more 
complicated than when this country was founded--we have extended what 
we lawyers like to call the police power of the State to encompass not 
just the traditional prohibitions of criminal acts and punishment for 
commission of those acts, but to protect people from being assaulted, 
for instance, by toxic chemicals in the air or in the water, substances 
that, if you listen to the public health experts--and they are credible 
ones--can do as much damage to people as criminals can.
  So we have adopted this law to protect people, whether it was against 
food poisoning or protecting children from iron toxicity, whether it is 
to ensure that mammography done in this country is safe and reliable, 
whether it is to protect us against the now legendary cryptosporidium, 
a microscopic parasite found in drinking water. This is why we adopt 
regulations. I hope this debate has reminded us of those underlying 
purposes.
  It seems to me S. 343, as amended, continues to present serious 
obstacles to the realization of those protective goals. I must say 
that, as I go around the State of Connecticut, I find that one of the 
aspects of our Government that people I speak to most support, even 
though they are upset about much else that we do here, is the work we 
do to protect the environment, to conserve the great natural resources 
that the good Lord has given this country and, in fact, this world, to 
protect them from threats that they cannot see in the water they drink, 
in the food they eat.
  They want us to continue to do this. And I am convinced that in the 
layers of hurdles--in the petition process set up within S. 343, as 
amended, in the decisional criteria, these four very high hurdles that 
regulations, protective regulations will have to jump over in order to 
stay valid, in the judicial review process, and so much else that is in 
this bill--that though the bill has been improved, it still needs to be 
improved more, or we will inadvertently, I believe--I hope 
unintentionally--have made it much more difficult for Government to 
protect people from threats to their health and safety and well-being 
that they cannot protect themselves from.
  The best way to describe and explain all this is with concrete 
examples, and let me give a few. The Clean Air Act requires that the 
standards for air quality be set at a level to provide protection of 
public health with an adequate margin of safety. I would guess, if we 
asked constituents in our district whether they want us, when it comes 
to protecting public health, their health, from pollution in the air--
whether they want us to do that with an adequate margin of safety, they 
would say yes. Sure, people are cost conscious. Obviously, they are 
cost conscious. But when it comes to their health, their parents' 
health, their children's health, I think they would want us to err on 
the side of that health, not on the side of the cost to the source of 
the pollution.
  Acting on guidance from Congress, the Environmental Protection Agency 
has set the standards for air quality, public health, at levels which 
err on the side of caution, at levels which do protect not just average 
people but also sensitive subgroups of the public such as the elderly, 
who are less able, because their bodies are older, to withstand 
pollution in the air; persons who have more respiratory problems; or 
children; or such as subgroups in the population who already are ill 
for one reason or another--they may have asthma, they may have heart 
disease. They are particularly vulnerable to dirty, polluted, toxic 
air.
  Although the statute on its face, the Clean Air Act, does not 
prohibit consideration of costs, EPA, for 25 years, has implemented the 
statute based on health protection and health protection alone. And the 
courts have upheld EPA's approach.
  For example, one of the pollutants that EPA regulates is sulfur 
dioxide, which comes from coal-burning utilities and smelters 
primarily. EPA long ago determined that its standard for sulfur dioxide 
emissions in the air should be set, not just to protect the average 
group of healthy Americans, but to protect asthmatics as well.
  There has been a 40 percent increase in asthma in our country in the 
last decade. That is a topic for another discussion as to why that has 
happened. My internists at home in New Haven said to me that he sees 
what he is calling an epidemic of asthma, particularly among kids. The 
standard EPA sets is at a level to protect asthmatics. The Clean Air 
Act requires that EPA periodically review this standard. And, under the 
bill before us, S. 343, as amended, industry--that is source of 
pollution who feel they are adversely affected by this sulfur dioxide 
standard--can petition to have the standard reviewed under the new 
decisional criteria, those four high hurdles that I have talked about.
  I respectfully suggest that the likely result, under this series of 
decisional criteria, would be that despite the long history I have 
talked about and the court decisions, EPA could no longer set the 
standard for sulfur dioxide at the level to protect as much public 
health and as many people in our country, including those with asthma 
and respiratory problems, as they do now.
  Instead, it would be required to look at the benefits from avoiding 
medical treatment for asthmatics and weigh those against the compliance 
costs imposed on the sources of the pollution, the smelters and other 
facilities.
  Inevitably, this will mean that the standard will not be set at a 
level that will protect the asthmatics who are protected now. And that 
is a lot of people. That is millions of people. It is our kids. It is 
our spouses. It is our parents. For the first time, the degree to which 
EPA is permitted to set these standards for air quality based on health 
protection would be compromised. And even if EPA could avoid this 
strict cost-benefit weighing part of the test that I have just 
described, one of the other sections of the decisional criteria is the 
least-cost section, which says that you have to do what you are 
supposed to do at the least cost possible, would require a weighing of 
costs which, again, would compromise the health-based standard but, 
more to the point, compromise the health of a lot of people in this 
country. 

[[Page S 10132]]

  Finally, because I see other colleagues on the floor, let me give a 
specific example of why the second decisional criteria, the least-cost 
alternative, could significantly reduce protection of public health and 
the environment.
  In 1991 EPA conducted a comprehensive cost-benefit analysis of 
options for the rule it was issuing that dealt with lead in drinking 
water--lead in drinking water. When you open the tap and drink the 
water, what about the lead in it? Several options had been suggested 
ranging from simply telling people to run their water before drinking 
it, which reduces the problem in some but not all cases, and depends on 
assuring that, for instance, children and others will run the water for 
a couple of minutes before drinking.
  Mr. President, I do not know about your kids--they are younger than 
mine--but I do not think mine will run a tap for a few minutes before 
drinking.
  Other alternatives for dealing with lead in water, drinking water, 
would require universal use of a corrosion-inhibiting chemical and the 
replacement of all lead-contaminated pipes or setting an ``at-the-tap'' 
standard for lead. So there were three or four alternatives available 
to EPA for dealing with this problem, the real public health problem of 
lead in drinking water.
  EPA conducted a detailed cost-benefit analysis for three alternative 
rules, all of which had benefits greater than costs. EPA chose the 
middle-of-the-road option, requiring some but not all water utilities, 
water companies, to use a corrosion-inhibiting chemical and requiring 
replacement of the worst lead pipes, but over a 22-year schedule to 
phase it in.
  It is very likely that under S. 343, if it is adopted as amended, the 
least-cost alternative would have been to issue a much more limited 
chemical treatment rule.
  Under the alternative selected by EPA, the benefits have been 
enormous. For a little more expenditure, we have received and obtained 
much greater health benefits, assuring, according to public health 
experts, that thousands of children would not have elevated blood lead 
levels and others with vulnerability to lead because of heart 
conditions would be saved, quite literally, from heart attacks.
  That EPA middle of the road rule had far, far greater benefits than 
the least-cost alternative that would be driven by S. 343, as amended, 
in terms of public health--and that means children have higher blood 
lead levels, they lower IQ's. It is pretty hard to calculate the cost 
of that, but in my opinion it is incalculable.
  EPA would simply not have been able to adopt the sensible midcourse 
alternative it selected if we adopted the bill as amended. That would 
not have made good common sense and obviously it would not have made 
good public health.
  Mr. President, I see other colleagues on the floor. I will yield the 
floor. But to say again what I said, at the beginning, we have made 
some progress on this bill. But there is a way to go before we 
accomplish both real regulatory reform and cut down the red tape, which 
all of us want to do, and the Glenn-Chafee bill does very sensibly. But 
what we have not done yet is assure that the public health, 
environmental protection, and consumer protection, which generated the 
adoption of the laws that gave birth to these regulations, are going to 
continue to be adequately protected. And until that is so, I will vote 
as I will in a short while against cloture on this bill.
  I thank the Chair. I yield the floor.
  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I see the Senator from Rhode Island wants 
to go forward for a few minutes. I ask unanimous consent that he 
proceed for 4 minutes, and that I then be recognized for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Rhode Island.
  Mr. CHAFEE. Thank you. I want to thank the distinguished Senator from 
Massachusetts for permitting me to go for 2 minutes.
  I would like to make a couple of points. One of the major objections 
to the Johnston bill is the so-called judicial review. We have dealt 
with the language of the Johnston bill and judicial review before. What 
is the language that is so objectionable? It is in section F. It says, 
``The reviewing court shall hold unlawful and set aside agency action 
findings or conclusions found to be without substantial support in the 
rulemaking file viewed as a whole.''
  That is complicated. But it is a very high standard to meet. It is 
very, very difficult. And what it means for those who are implementing 
the rule--any of the agencies, whether it is EPA or whatever it is--it 
is very hard for them to have a rule that cannot be thrown out by the 
courts under this definition. We have done this before.
  In 1982, Senator Bumpers had an amendment that came out of the 
committee when we were doing regulatory reform in that year, which had 
exactly the same language that we--I and others on this side--are 
objecting to, and that Senator Hatch and others put into this bill.
  So we had a Republican administration. We had a Republican Senate, 
and that group--the administration and the Republican Senate--
vigorously objected to the language that was in that bill, the so-
called ``Bumpers language,'' which is exactly the same as the Hatch 
language today.
  So Senator Bumpers came up with an amendment. He changed that 
objectionable language. And the Vice President of the United States, on 
February 23, 1982, George Bush, wrote the letter.

       Dear Dale: We have received your proposed amendments to S. 
     1080 and the explanation of those amendments. We believe that 
     these changes, as explained by what would be legislative 
     history, are significant improvements.

  On and on he goes.
  So the language that I am objecting to, and others who will not 
support cloture tonight, is the exact same language that a Republican 
administration, that a Republican Senate, objected to in 1982. It was 
objectionable then, it is just as objectionable now.
  I do hope that cloture will not prevail.
  I thank the Chair. I thank the Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. HATCH. Will the Senator yield for a request?
  Mr. KERRY. I yield for a request.
  Mr. HATCH. I ask unanimous consent that following the remarks of the 
distinguished Senator from Massachusetts that I be permitted to speak a 
few words on this before cloture.
  The PRESIDING OFFICER. Is there objection?
  Mr. GLENN. Reserving the right to object, Mr. President, would we 
still have the vote at 6 o'clock?
  Mr. HATCH. Oh, yes.
  Mr. GLENN. We have both leaders who wish to speak.
  Mr. HATCH. That is right. I will be short. We want to allow enough 
time for both Senators to have a few remarks.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I congratulate my colleague from Rhode 
Island for his comments, and also the Senator from Connecticut, who in 
a detailed fashion has summarized why this bill is not prepared to be 
passed on by the Senate, and why colleagues sought to oppose cloture at 
this point.
  Mr. President, this bill flies directly contrary in its current form 
to the principles espoused by Philip Howard in ``The Death of Common 
Sense,'' and to the whole concept of reform. Reform is supposed to 
create simplicity. It is supposed to create fairness. It is supposed to 
reduce the paperwork and reduce the opportunities for litigation.
  This bill in its current form is a lawyer's and an accountant's 
dream.
  Mr. President, here is list of 88 new opportunities for litigation in 
the Dole-Johnston bill before us. This bill is supposed to simplify. We 
keep hearing in the U.S. Senate about how there is too much litigation. 
However, there is no such opportunity for litigation in the current law 
for these items. But under this bill, here are the opportunities for 
litigation--88 new opportunities--for lawyers to dream up ways they can 
come into court. This is not speculative. This is by the very language 
written in this bill.
  For instance, section 622, (c)(2)(C)(1), ``Did the agency adequately 
identify alternatives that require no government acts?''

[[Page S 10133]]

  If somebody wants to sue suggesting that they did not, all they have 
to do is make the claim, come into court, and that review will take 
place.
  ``Did the agency adequately describe attempts to verify quality, 
reliability and relevance of science?'' Section 622, (d)(2)(A)?
  I can go through the entire bill where, because they are opening up 
procedure to review--not just substance but procedure--you are going to 
tie up an agency in court.
  Mr. President, they will come back and say, ``No, no, no, we do not 
want the procedure to be reviewed.'' And they will suggest that there 
is language here that precludes that.
  I respectfully say that is not the case; there is sufficient 
ambiguity that lawyer-legislators on both sides are arguing about it. 
And the question is, therefore, if their intent is not to create that 
avenue of judicial review, if their intent is to do as they say, to 
preclude it, then why do we not make it clear in this legislation? 
Every attempt to try to make it clear has been rebuffed.
  So I respectfully suggest that, just as in the area of least cost 
alternative where they suggest that there is not a rigid rule 
precluding judgment and discretion by the agency head, there will be 
sort of discretion. We are saying no. The language of this bill 
provides a rigidity, and we do not want that rigidity in this 
particular legislation.
   In addition, I would like to point out that in today's Washington 
Post, there was an article that talked about being buried by paperwork. 
It had the amounts of money, and how the regulatory paper trail leads 
nowhere. But interestingly enough, almost every dollar in this article 
was in the SEC and the IRS, both of which are exempted under the Dole-
Johnston bill.
  So the very place where you find the problem, they have exempted it. 
Then they come in and say, well, there is $500 billion worth of cost to 
our economy. Yet the GAO has shown that study is totally faulty, that 
in point of fact there is only about $225 billion total cost to a $1.6 
trillion economy. All the additional costs that they throw into their 
pot are costs that are related to what we call transfer payments and 
process costs that have nothing to do with the regulatory process 
itself.
  So, Mr. President, if we want to simplify, which we do, you have an 
alternative. It is the Glenn-Chafee, or Chafee-Glenn bill. It is 
similar to a bill that came out of committee 15 to nothing in a 
bipartisan form. That is a bill which has review. It is a bill which 
has a cost-benefit analysis. It is a bill that has risk assessment. But 
it does not create a rigid rule that denies discretion or judgment to 
the agency heads who deal with these issues.
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. KERRY. I am happy to yield for a question.
  Mr. JOHNSTON. Is the Senator aware that the original Roth bill that 
came out of committee unanimously, as the Senator says, required a 
review of rules?
  Mr. KERRY. Yes.
  Mr. JOHNSTON. This is the exception. There is no rule that needs to 
be reviewed, unless the agency head wishes to in his sole discretion, 
and that is not reviewable.
  Mr. KERRY. The Senator is not only aware of it, but that is the 
standard which we would embrace in this bill. But because of the 
judicial review standard that the Senator from Louisiana is pressing 
and because of the petition process which the Senator from Louisiana is 
pressing, we totally inundate the agencies.
  What is going to happen here, Mr. President, is that a process that 
is supposed to simplify is going to swamp the agencies. The EPA 
currently has a very clear graph that shows how many hours go into 
rulemaking from business. Business currently spends about 70,000 hours 
putting together the reports for the process of rulemaking. Under this 
process, you are going to triple or quadruple the amount of industry 
input. You are going to at least double the governmental input, and 
there will be no commensurate increase in resources or budget.
  The effect will be they will be swamped, because there is a clever 
little clause in here that says if you do not get your review done in 3 
years, we are going to throw the rule out. So first they swamp the 
agency. Then they provide a whole bunch of opportunities for 
litigation. And they say if you have not performed your responsibility 
within that span of time, which is impossible, we throw the rule out 
anyway. That is stripping America of 25 years of effort to try to have 
a reasonable process of regulation.
  I wish to give all colleagues time here, but I just say, Mr. 
President, I am prepared to vote for a reasonable reform bill that has 
a reasonable judicial review standard, a reasonable cost-benefit 
analysis and risk-assessment approach, but that does not tie the 
Government in knots and that does not take the current 1-page 
Administrative Procedure Act approach to rulemaking and add an 
additional 64 new pages from the Dole-Johnston bill.
  That is not simplification. That is not reform. That is an 
opportunity for lawyers to have a field day in court and to prevent us 
from ever having a rule that addresses the public safety and health 
needs and environmental needs of this country.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, what 343 requires is that when there is a 
major rule, if there is going to be litigation, it has to be the whole 
rule. It cannot be nit-picked to death as has been suggested under the 
language there. And every major rule is litigated now. So there is 
nothing to those arguments that have been argued here.
  With regard to what Senator Chafee said, Senator Johnston does, 
indeed, amend section 706 of the Administrative Procedure Act to apply 
the ``substantial evidence test'' to informal--notice and comment--
rulemaking.
  I wish to point out that this test is hardly novel. It has been 
codified in the Administrative Procedure Act for almost 50 years--
section 706(2)(E)--as the standard to apply in adjudicatory 
rulemakings.
  Moreover, Congress has in specific statutes required the substantial 
evidence test for informal rulemakings since the late 1960's. Just some 
examples include the Occupational Health and Safety Act of 1970 and the 
Magnuson-Moss FTC Improvement Act of 1975.
  In 1981, the Administrative Conference of the United States 
recommended that section 706 of the APA be amended to include a 
substantial evidence test for informal rulemakings. That was 
recommendation No. 81-2. The Administrative Law Section of the American 
Bar Association made a similar recommendation in 1986.
  Also, in 1981, the Senate approved the Bumpers amendment to S. 1080, 
the precursor to present S. 343 that passed the Senate 94 to 0 in 1982. 
That amendment's language applying the substantial evidence test to 
informal rulemakings is virtually similar to the language of Dole-
Johnston. I might add that the American Bar Association strongly 
recommended including the substantial evidence test for informal 
rulemakings in S. 343.
  The substantial evidence test is the appropriate standard for 
judicial review when examining whether the factual basis of the rule 
justifies the rulemaking. Contrary to assertions made by some of my 
colleagues, the substantial evidence test is not so stringent as to 
impede the implementation of rules.
  It is now recognized that the substantial evidence test is the 
functional equivalent of the standard arbitrary and capricious test. 
Indeed, a number of courts and legal commentators have concluded that, 
when applied to court review of factual conclusions made by agencies, 
the distinction between the substantial evidence test and the arbitrary 
and capricious standard is largely semantic.--Association of Data 
Processing Service Organizations v. Board of Governors, 745 F.2d 677, 
684 (1984) (and cases cited therein).
  Nonetheless, adoption of this test is important because it is the 
appropriate standard for courts to employ when reviewing factual 
determinations. In other words, the substantial evidence standard aids 
the court in determining whether an agency abused its discretion in 
promulgating a rule.
  I notice the distinguished majority leader is here.
  Mr. President, just let me say this. Despite all of the hysterical 
rhetoric 

[[Page S 10134]]
that we have heard on this bill, this bill is simply a commonsense 
bill. It is a reasonable effort to rationalize the regulatory process. 
Meaningful regulations in the areas of health, safety, and environment 
are important and necessary. This bill does nothing to repeal or change 
needed and reasonable regulations. All this bill does is require a 
reasonable process whereby we ensure that the benefits from these 
regulations justify the costs. We have a Government out of control. 
This is a modest attempt to try to get it back into control, and I hope 
everybody will vote for cloture on this bill.
  I yield the floor.
  Mr. DASCHLE. Mr. President, I know that we are about ready to cast 
the vote. I will be very brief.
  As we have said over and over throughout the debate today and over 
the course of the last several days, the fact is that there has been a 
very good debate about a number of extraordinarily complex issues, 
issues that ought to be aired, issues that ought to be raised in the 
context of both regulatory reform and public safety.
  We have done that. We have offered amendments. We have had a good 
debate. There have been very few quorum calls. There is no filibuster. 
I hope all colleagues consider this vote very carefully and vote 
against cloture this afternoon.
  Let me remind my colleagues that 38 amendments, so far, have been 
offered--38 amendments over the last 7 days or so. Of the 38 amendments 
that were offered, 24 of those amendments were offered by proponents--
24 of them. Only 14 of the 38 amendments which have been offered have 
been offered by those who are not supporters of the legislation. Of 
those, 7 were adopted, 3 were rejected by a 2-vote margin, 2 were 
withdrawn, 1 was the only one to lose by more than 10 votes, and 1 is 
pending right now, the Glenn-Chafee substitute.
  So if you take the substitute away, 13 amendments are all the 
amendments that have been offered on our side to date. And of those, 
very few were rejected--in fact, only one was rejected--by more than 10 
votes.
  I think the point of all this is very clear. We are making a good-
faith effort to try to work through this issue in a meaningful way. 
Even if the substitute is declared germane, as I understand it has 
been, there are a number of additional relevant amendments, amendments 
that we have been waiting to offer, amendments that we hope to be able 
to propose at some point in the not-too-distant future, most likely 
even with time agreements. We are willing to do that, but if we are 
going to be able to offer those amendments, invoking cloture now would 
preclude a lot of Members from having the right to do so.
  So I urge our colleagues to oppose cloture, recognize that we are not 
filibustering, we are not extending debate unnecessarily, recognize 
that the amendments that have been offered in large measure have been 
offered by those on the other side, and recognize as well that as 
complicated as this is, it is imperative we continue to try to work 
through the bill, as difficult as it may be.
  I believe we can do it. I am still optimistic that we can accommodate 
all Senators in trying to achieve our objective of reaching some 
ultimate compromise on this legislation and vote in a bipartisan 
manner. But we cannot do that today; we cannot do that by cutting off 
debate. We cannot do that by precluding Senators' rights to offer 
amendments as they have been doing now for about a week.
  I yield the floor.
  Mr. DOLE. Mr. President, tonight we take the first step toward 
bringing this important debate to a close.
  Despite all the horror stories, despite all the distortions, despite 
the desperate attempts to shift the focus of this debate, I want to 
make very clear that I intend to fulfill the mandate given to us by the 
American people--and bring some common sense to the regulatory process 
and get the Government off our backs.
  On one side of this debate stand the defenders of the status quo. 
Regulatory reform is a direct threat to their smug assumption that 
Washington knows best and that it cannot do any better. The defenders 
of the status quo can only win by delay and distortion.
  On the other side of this debate stand those Senators--and I must 
point out that we have Republicans and Democrats--who understand that 
we have to provide relief to American families and small businesses who 
bear the burden of overregulation. We understand we can do so in ways 
that protect health and safety.
  Though I do not really expect to close off debate tonight, it is 
important to understand that we intend to win, and that it is our 
obligation to pass meaningful regulatory relief, not just some watered 
down version that accomplishes nothing.
  Therefore, if cloture is not invoked tonight, we will vote again on 
cloture tomorrow. And if we do not succeed at that time, we will vote 
again to close debate on Wednesday.
  The issues at stake are too important. Unfortunately, those issues 
have often been obscured by those like Ralph Nader and President 
Clinton who repeatedly make basic factual errors about this bill.
  The reality is not so hard to understand:
  This bill has been amended over 100 times, incorporating comments and 
suggestions from the Clinton administration and Democrat and Republican 
Members;
  This bill largely codifies President Clinton's Executive order on the 
regulatory process;
  This bill incorporates whole sections of S. 1080, a bill passed 
unanimously in the Senate in 1982;
  And perhaps most important, this bill includes close to 20 different 
protections for health, safety, and the environment.
  These are the facts. Those facts--as opposed to the twisted version 
reported by the media--suggest that those who oppose our reforms have 
some explaining to do. Those who seek to stall reform will have to 
answer to the American people.
  And in the end, I am confident that we can pass this bill with broad 
bipartisan support.
  Mr. President, I would be very willing to sit down with the 
Democratic leader and figure out how we could bring this matter to a 
conclusion tomorrow or even on Wednesday. But this is the seventh or 
eighth day we have been on this bill. It is a very important bill. Many 
of the amendments offered by proponents were in response to requests 
from those who opposed the bill--this would make it better, this is a 
compromise, work it out. There have been a number of amendments. In 
fact, we took a major amendment of the Senator from Ohio, who was 
prepared to debate it for 2 hours. We said we will take it. It is the 
sunshine amendment, a major amendment.
  We have taken a number of amendments. We have addressed the 180 days 
problem. We have addressed a number of major problems, as I understand 
it.
  So now there are 267 amendments pending at the desk, first- and 
second-degree amendments--267 or 260-some. How do you finish a bill 
with that many amendments? In fact, it is worse than the tax bill where 
sometimes you have 80 or 100 amendments. And I must say some of those 
amendments are on this side so they are not just coming from that side. 
I do not want to leave that impression. Most are coming from that side 
but some are coming from this side.
  We thought last week, or last Thursday or Friday, according to our 
list--not everybody would tell us what their amendments were--there 
were probably two or three on this side and five or six on the other 
side, including the major substitute which we are on right now.
  I do not want to shut off anybody. If we cannot get cloture, we 
cannot get cloture, we will not have regulatory reform. That is not a 
threat, but if you just take out the calendar--there are already people 
complaining about not getting a full August recess and there are 
probably going to be more and more complaints as we get closer to 
August 4. I would like to accommodate most people to get out at least a 
part of August. But if we want to spend more time on this bill than we 
should, do not be coming around to the majority leader saying, ``Oh, 
you can't take away our August recess.''
  I do not want to take away anything. I have a lot of places I can go 
in August, would like to go in August, other than Iowa and New 
Hampshire.
  [Laughter.] 

[[Page S 10135]]

  We are not going to get cloture. We have four or five absentees. We 
have two or three who have not seen the light on this side yet, maybe 
four. But despite all the horror stories, despite all the distortions 
and despite the desperate attempt to shift the focus of this debate--in 
fact, the President said on Saturday on the radio show if you adopt 
this bill, there are going to be more air crashes. And this is the same 
President a week ago who said we should be more civil, we should not 
make statements like this, we should treat everybody with civility. And 
he charges Republicans, on a bill like this, with air crashes, dirty 
meat, dirty water, dirty air, two or three other things. He did not 
have much time on the air. He mentioned three or four ridiculous, 
ludicrous, exaggerated statements like that.
  We think we have made a lot of progress. We think this is a 
bipartisan effort. If I have missed something somewhere along the line, 
then I think we should try to address it. I am willing at any time to 
set down a schedule of amendments to finish this bill. I am ready to 
vote tomorrow morning, tomorrow noon on the big substitute. Maybe that 
is one way. Once we determine how that is going to come out, maybe that 
will move the debate.
  I think we may as well vote. We do not have the votes. Those who are 
not ready for regulatory reform will vote ``no.'' Those who are will 
vote ``aye.''

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