[Congressional Record Volume 141, Number 116 (Tuesday, July 18, 1995)]
[Senate]
[Pages S10189-S10220]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COMPREHENSIVE REGULATORY REFORM ACT

  The PRESIDING OFFICER. 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.
       Levin (for Glenn) amendment No. 1581 (to amendment No. 
     1487), in the nature of a substitute.
       Ashcroft amendment No. 1786 (to amendment No. 1487), to 
     provide for the designation of distressed areas within 
     qualifying cities as Regulatory Relief Zones and for the 
     selective waiver of Federal regulations within such zones.

  The PRESIDING OFFICER. The Senator from Missouri [Mr. Ashcroft].


                           Amendment No. 1786

  Mr. ASHCROFT. Mr. President, throughout the current debate on S. 343, 
regulatory reform, little has been said about the devastating effects 
of regulations on America's urban core inner-city centers. Yet it is 
precisely our Nation's most distressed urban areas which are really 
threatened as a result of the onerous implications of some of the 
regulations on the city center. I believe it is time for us to look at 
those regulations as they relate to the cities and the potential for 
job growth and development in those cities. And it is time for us to 
have a look at whether or not we can mitigate the impacts of regulation 
against some of the areas where job development and growth are most 
challenging.
  So I have submitted an amendment which is called the Urban Regulatory 
Relief Zone Act of 1995, an amendment to Senate bill 343, which is 
designed to try to provide that kind of relief. I believe it is in the 
best interests of our urban centers to be able to develop waivers so 
when we really find the regulations are hurting the health, the safety, 
the well-being, the security of our citizens, that, in fact, those 
regulatory provisions can be waived in cooperation with the Federal 
Government to provide an opportunity for jobs.
  Mrs. HUTCHISON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, will the Senator yield?
  The PRESIDING OFFICER. The Senator from Texas [Mrs. Hutchison] is 
recognized.


                Amendment No. 1789 to Amendment No. 1786

  (Purpose: To provide for the designation of distressed areas within 
  qualifying cities as regulatory relief zones and for the selective 
            waiver of Federal regulations within such zones)

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

       The Senator from Texas [Mrs. Hutchison], for herself and 
     Mr. Ashcroft, proposes an amendment numbered 1789 to 
     amendment No. 1786.

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

       In lieu of the matter proposed to be added, add the 
     following:

               ``TITLE II--URBAN REGULATORY RELIEF ZONES

     SECTION 201. SHORT TITLE.

       This Act may be cited as the ``Urban Regulatory Relief Zone 
     Act of 1995''.

     SEC. 202. FINDINGS.

       The Congress finds that--
       (1) the likelihood that a proposed business site will 
     comply with many government regulations is inversely related 
     to the length of time over which a site has been utilized for 
     commercial and/or industrial purposes in the past, thus 
     rendering older sites in urban areas the sites most unlikely 
     to be chosen for new development and thereby forcing new 
     development away from the areas most 

[[Page S 10190]]
     in need of economic growth and job creation; and
       (2) broad Federal regulations often have unintended social 
     and economic consequences in urban areas where such 
     regulations, among other things--
       (A) offend basic notions of common sense, particularly when 
     applied to individual sites;
       (B) adversely impact economic stability;
       (C) result in the unnecessary loss of existing jobs and 
     businesses;
       (D) undermine new economic development, especially in 
     previously used sites;
       (E) create undue economic hardships while failing 
     significantly to protect human health, particularly in areas 
     where economic development is urgently needed in order to 
     improve the health and welfare of residents over the long 
     term; and
       (F) contribute to social deterioration to a such degree 
     that high unemployment, crime, and other economic and social 
     problems create the greatest risk to the health and well-
     being of urban residents.

     SEC. 203. PURPOSES.

       The purposes of this title are to--
       (1) enable qualifying cites to provide for the general 
     well-being,
      health, safety and security for their residents living in 
     distressed areas by empowering such cities to obtain 
     selective relief from Federal regulations that undermine 
     economic stability and development in distressed areas 
     within the city; and
       (2) authorize Federal agencies to waive the application of 
     specific Federal regulations in distressed urban areas 
     designated as Urban Regulatory Relief Zones by an Economic 
     Development Commission--
       (A) upon application through the Office of Management and 
     Budget by an Economic Development Commission established by a 
     qualifying city pursuant to section 205; and
       (B) upon a determination by the appropriate Federal agency 
     that granting such a waiver will not substantially endanger 
     health or safety.

     SEC. 204. ELIGIBILITY FOR WAIVERS.

       (a) Eligible Cities.--The mayor or chief executive officer 
     of a city may establish an Economic Development Commission to 
     carry out the purposes of section 205 if the city has a 
     population greater than 200,000 according to:
       (1) the U.S. Census Bureau's 1992 estimate for city 
     populations; or
       (2) beginning six months after the enactment of this title, 
     the U.S. Census Bureau's latest estimate for city 
     populations.
       (b) Distressed Area.--Any census tract within a city shall 
     qualify as distressed area if--
       (1) 33 percent or more of the resident population in the 
     census tract is below the poverty line; or
       (2) 45 percent or more of out-of-school males aged 16 and 
     over in the census tract worked less than 26 weeks in the 
     preceding year; or
       (3) 36 percent or more families with children under age 18 
     in the census tract have an unmarried parent as head of the 
     household; or
       (4) 17 percent or more of the resident families in the 
     census tract received public assistance income in the 
     preceding year.

     SEC. 205. ECONOMIC DEVELOPMENT COMMISSIONS.

       (a) Purpose.--The mayor or chief executive officer of a 
     qualifying city under section 204 may appoint an Economic 
     Development Commission for the purpose of--
       (1) designating distressed areas, or a combination of 
     distressed areas with one another or with adjacent industrial 
     or commercial areas, within the city as Urban Regulatory 
     Relief Zones; and
       (2) making application through the Office of Management and 
     Budget to waive the application of specific Federal 
     regulations within such Urban Regulatory Relief Zones.
       (b) Composition.--To the greatest extent practicable, an 
     Economic Development Commission shall include--
       (1) residents representing a demographic cross section of 
     the city population; and
       (2) members of the business community, private civic 
     organizations, employers, employees, elected officials, and 
     State and local regulatory authorities.
       (c) Limitation.--No more than one Economic Development 
     Commission shall be established or designated within a 
     qualifying city.

     SEC. 206. LOCAL PARTICIPATION.

       (a) Public Hearings.--Before designating an area as an 
     Urban Regulatory Relief Zone, an Economic Development 
     Commission established pursuant to section 205 shall hold a 
     public hearing, after giving adequate public notice, for the 
     purpose of soliciting the opinions and suggestions of those 
     persons who will be affected by such designation.
       (b) Individual Requests.--The Economic Development 
     Commission shall establish a process by which individuals may 
     submit requests to the Economic Development Commission to 
     include specific Federal regulations in the Commission's 
     application to the Office of Management and Budget seeking 
     waivers of Federal regulations.
       (c) Availability of Commission Decisions.--After holding a 
     hearing under paragraph (a) and before submitting any waiver 
     applications to the Office of Management and Budget pursuant 
     to section 207, the Economic Development Commission shall 
     make publicly available--
       (1) a list of all areas within the city to be designated as 
     Urban Regulatory Relief Zones, if any;
       (2) a list of all regulations for which the Economic 
     Development Commission will request a waiver from a Federal 
     agency; and
       (3) the basis for the city's findings that the waiver of a 
     regulation would improve the health and safety and economic 
     well-being of the city's residents and the data supporting 
     such a determination.

     SEC. 207. WAIVER OF FEDERAL REGULATIONS.

       (a) Selection of Regulations.--An Economic Development 
     Commission may select for waiver, within an Urban Regulatory 
     Relief Zone, Federal regulations that--
       (1)(A) are unduly burdensome to business concerns located 
     within an area designated as an Urban Regulatory Relief Zone; 
     or
       (B) discourages new economic development within the zone; 
     or
       (C) creates undue economic hardships in the zone; or
       (D) contributes to the social deterioration of the zone; 
     and
       (2) if waived, will not substantially endanger health or 
     safety.
       (b) Request for Waiver.--(1) An Economic Development 
     Commission shall submit a request for the waiver of Federal 
     regulations to the Office of Management and Budget.
       (2) Such request shall--
       (A) identify the area designated as an Urban Regulatory 
     Relief Zone by the Economic Development Commission;
       (B) identify all regulations for which the Economic 
     Development Commission seeks a waiver; and
       (C) explain the reasons that waiver of the regulations 
     would economically benefit the Urban Regulatory Relief Zone 
     and the data supporting such determination.
       (c) Review of Waiver Request.--No later than 60 days after 
     receiving the request for waiver, the Office of Management 
     and Budget shall--
       (1) review the request for waiver;
       (2) determine whether the request for waiver is complete 
     and in compliance with this title, using the most recent 
     census data available at the time each applicant is 
     submitted; and
       (3) after making a determination under paragraph (2)--
       (A) submit the request for waiver to the Federal agency 
     that promulgated the regulation and notify the requesting 
     Economic Development Commission of the date on which the 
     request was submitted to such agency; or
       (B) notify the requesting Economic Development Commission 
     that the request is not in compliance with this Act with an 
     explanation of the basis for such determination.
       (d) Modification of Waiver Requests.--An Economic 
     Development Commission may submit modifications to a waiver 
     request. The provisions of subsection (c) shall apply to a 
     modified waiver as of the date such modification is received 
     by the Office of Management and Budget.
       (e) Waiver Determination.--(1) No later than 120 days after 
     receiving a request for waiver under subsection (c) from the 
     Office of Management and Budget, a Federal agency shall--
       (A) make a determination of whether to waiver a regulation 
     in whole or in part; and
       (B) provide written notice to the requesting Economic 
     Development Commission of such determination.
       (2) Subject to subsection (g), a Federal agency shall deny 
     a request for a waiver only if the waiver substantially 
     endangers health or safety.
       (3) If a Federal agency grants a waiver under this 
     subsection, the agency shall provide a written statement to 
     the requesting Economic Development Commission that--
       (A) describes the extent of the waiver in whole or in part; 
     and
       (B) explains the application of the waiver, including 
     guidance for the use of the waiver by business concerns, 
     within the Urban Regulatory Relief Zone.
       (4) If a Federal agency denies a waiver under this 
     subsection, the agency shall provide a written statement to 
     the requesting Economic Development Commission that--
       (A) explains the reasons that the waiver substantially 
     endangers health or safety; and
       (B) provides a scientific basis in writing for such 
     determination.
       (f) Automatic Waiver.--If a Federal agency does not provide 
     the written notice required under subsection (e) within the 
     120-day period as required under such subsection, the waiver 
     shall be deemed to be granted by the Federal agency.
       (g) Limitation.--No provision of this Act shall be 
     construed to authorize any Federal agency to waive any 
     regulation or Executive order that prohibits, or the purpose 
     of which is to protect persons against, discrimination on the 
     basis of race, color, religion, gender, or national origin.
       (h) Applicable Procedures.--A waiver of a regulation under 
     subsection (e) shall not be considered to be a rule, 
     rulemaking, or regulation under chapter 5 of title 5, United 
     States Code. The Federal agency shall publish a notice in the 
     Federal Register stating any waiver of a regulation under 
     this section.
       (i) Effect of Subsequent Administration of Regulations.--If 
     a Federal agency amends a regulation for which a waiver under 
     this section is in effect, the agency shall not change the 
     waiver to impose additional requirements.
       (j) Expiration of Waivers.--No waiver of a regulation under 
     this section shall expire unless the Federal agency 
     determines that a continuation of the waiver substantially 
     endangers health or safety.

     SEC. 208. DEFINITIONS.

       For purposes of this Act, the term--

[[Page S 10191]]

       (1) ``regulation'' means--
       (A) any rule as defined under section 551(4) of title 5, 
     United States Code; or
       (B) any rulemaking conducted on the record after 
     opportunity for an agency hearing under sections 556 and 557 
     of such title;
       (2) ``Urban Regulatory Relief Zone'' means an area 
     designated under section 205;
       (3) ``qualifying city'' means a city which is eligible to 
     establish an Economic Development Commission under section 
     204;
       (4) ``industrial or commercial area'' means any part of a 
     census tract zoned for industrial or commercial use which is 
     adjacent to a census tract which is a distressed area 
     pursuant to section 205(b); and
       (5) ``poverty line'' has the same meaning as such term is 
     defined under section 673(2) of the Community Services Block 
     Grant Act (42 U.S.C. 9902(2)).

     SEC. 209. EFFECTIVE DATE.

       The provisions of this title shall become effective one day 
     after the date of enactment.''.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I sent an amendment to the amendment 
to the desk because I think Senator Ashcroft is doing a very important 
thing for the urban areas of our country. It is clear that we need to 
do everything we can to create jobs in our urban areas, and 
particularly in the distressed parts of our urban areas.
  I did make a minor amendment in the change of the effective date, but 
I support Senator Ashcroft's amendment wholeheartedly and appreciate 
his yielding the floor to me for this short time.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan [Mr. Levin], is 
recognized.


                           Amendment No. 1581

  Mr. LEVIN. Mr. President, we all want significant and meaningful 
regulatory reform. No one wants rules that do not make sense. Nobody 
wants regulatory requirements that exceed real needs. We want 
Government to be smart, effective, reasonable, and practical.
  There are plenty of regulatory horror stories. Some are accurate and 
some are not. There is more than enough evidence for us to be convinced 
of the fact that the regulatory process is broken and needs fixing. We 
spent several months in Governmental Affairs earlier this year 
considering a bill introduced by Senators Roth and Glenn which, with a 
few important amendments, we reported to the full Senate for its 
consideration. It was passed by a unanimous, bipartisan vote of 15 to 
0. It has cost-benefit analysis, risk assessment, legislative review, 
and a procedure for the review of existing rulings. With a few 
modifications this is the Glenn-Chafee substitute that is now before 
us. It is tough medicine that is designed to cure and not to kill the 
regulatory process.
  The Glenn-Chafee substitute is tough because it would require, by 
law, that every major rule be subject to a cost-benefit analysis and, 
for key agencies, a risk assessment. It would require that each agency 
assess whether the benefits of the rule that it is proposing or 
promulgating will justify the costs of implementing it; and whether the 
rule is the most cost-effective rule among the various alternative 
proposals.
  These two elements are key to rational rulemaking. It is tough 
because, by statute, it resolves once and for all the role of the 
President in overseeing the regulatory process. The bill gives the 
President the authority to oversee the cost-benefit analysis and risk 
assessment requirements, and recognizes the significant contribution 
that the President can make to rational rulemaking.
  It gives Congress the right to stop a rule before it takes effect. It 
is tough because it allows for judicial review of an agency's 
determination as to whether or not a rule meets the $100 million 
economic impact test, and because a rule can be remanded to an agency 
for the failure of the agency to do the cost-benefit analysis or risk 
assessment.
  It is tough because it requires rules scheduled for review to be 
subject to repeal, should the agency fail to review them in 10 years, 
according to the schedule and requirements of this legislation.
  The Glenn-Chafee substitute also reflects some common sense, because 
it recognizes that decisions about benefits and costs are, by 
necessity, not an exact science but an exercise of judgment. It 
reflects common sense because it does not subject all rules to 
congressional review, but only the major rules. It reflects common 
sense because it uses information as a tool for assessing agency 
performance and makes that information available for everyone to judge 
and to challenge.
  The Dole-Johnston amendment goes too far. In its zeal for reform, it 
overreaches and damages the very process that it sets out to repair.
  It is not reform. It is overload. It is like throwing a bucket of 
water to a drowning person. It is as if a doctor is tripling the 
prescribed dosage in order to get a better effect. It ends up actually 
harming the patient instead of helping.
  While the Dole-Johnston substitute is an improvement over S. 334, as 
introduced, and has been improved in some way, it still falls far short 
of the goal that we need for regulatory reform, which is to improve the 
regulatory process so that it works better, results in rules that make 
sense, and at the same time we maintain the important health, safety 
and environmental protections that Americans expect and deserve. The 
Dole-Johnston substitute would bog down--rather than clean up--the 
regulatory process, and would put important health, safety, and 
environmental protections needlessly at risk.
  The Cabinet officials of this administration have issued a statement 
of policy stating that they would recommend that the President veto S. 
343 in its present form, as of July 10, 1995, when the policy statement 
was written. The summary states that the cumulative effect of S. 343 
would burden the regulatory system with additional paperwork, 
unnecessary cost, significant delay, and excessive litigation, and then 
states in a very unusual document that the Secretaries of Labor, 
Agriculture, Health and Human Services, Housing and Urban Development, 
Transportation, Treasury, Interior, EPA, and the Director of OMB all 
would make that recommendation for a veto.
  This document has been put in the Record. It sets forth paragraph by 
paragraph, issue by issue, and item by item why the Dole-Johnston 
approach represents overload, why it would drown the system instead of 
repairing it.
  The Glenn-Chafee substitute would fundamentally change, as we should, 
the way that Federal regulatory agencies do business. At the same time, 
it would keep a system that would allow us to preserve critically 
needed health, safety, and environmental approaches. The Glenn-Chafee 
substitute would help prevent regulatory agencies from issuing rules 
that are not based on good common sense or on good science, or that 
would impose costs that are not justified by the benefits of the rule. 
But it would not inhibit or prevent agencies from taking the necessary 
steps that the American public wants to take to protect their health 
and their environment and their safety.
  The question here is the balance that we are going to set. That is 
really the issue. And it is an incredibly detailed and arcane bunch of 
issues that we must deal with. But if we make a big mistake and go way 
too far and bog down a system in a whole series of new approaches 
subject to litigation, we will end up doing a tremendous disfavor, not 
just to the American people but to the business community itself, which 
also needs the regulatory system to work.
  Glenn-Chafee strikes a good balance in a number of ways. First, all 
Federal agencies would be required to perform and publish cost-benefit 
analyses before issuing major rules. The agencies would be required to 
compare the costs and benefits of not only the proposed rule but of 
reasonable alternatives as well, including non-regulatory, market-based 
approaches. The agencies would be required to explain whether the 
expected benefits of the rule justify the cost and whether the rule 
will achieve the benefits in a more cost-effective manner than the 
alternatives. The cost-benefit analysis would be reviewed by a panel of 
independent experts, and the agencies would be required to respond to 
peer reviewers' concerns.
  Under Glenn-Chafee, the major regulatory agencies would be required 
to perform and publish risk assessment before issuing major rules 
regulating 

[[Page S 10192]]
risks to the environment, health, and safety. The risk assessments 
would be required to be based on reliable scientific data, and would 
disclose and explain any assumptions and value judgments. The risk 
assessment would have to be reviewed by a panel of independent experts, 
and agencies would have to respond to peer reviewers' concerns. Federal 
agencies would be required to review important regulations, eliminate 
unnecessary regulations, and reform any that do not meet the new 
standards that this bill would create. If an agency fails to conduct a 
review within the time required by the schedule, it would be required 
to issue a notice of proposed rulemaking to repeal the rule rather than 
to have the rule automatically sunset. That rulemaking would have to be 
completed in 2 years. That is one of the key differences between the 
two approaches that we will be deciding a little later on today.
  Congress would have under Glenn-Chafee 45 days before issuance of any 
major rule to review the rule, to prevent it from taking effect by 
passing expedited procedures in a joint resolution of disapproval. That 
finally would put elected representatives in a position to assure that 
agencies' rules are consistent with Congress' intent. And this is the 
power that I have fought to create as long as I have been in this body.
  Under Glenn-Chafee, covered agencies would be required to set 
regulatory priorities, to address the risks that are most serious and 
can be addressed in a cost-effective manner. Agencies would be required 
to explain and reflect these priorities in their budget requests.
  Every 2 years the President would be required to report to Congress 
the cost and the benefits of all regulatory programs and 
recommendations for reform. The OMB would be required by law to oversee 
compliance with the bill, and would be required to review all major 
rules before issuance. This would strengthen Presidential control over 
regulatory agencies, particularly the independent agencies.
  The Glenn-Chafee substitute includes all of the provisions that we 
need to produce lasting and meaningful regulatory reform. In a number 
of respects Glenn-Chafee goes farther than the regulatory reform bill 
passed by the House of Representatives, H.R. 9, which does not provide 
for the review of existing regulations or congressional review, or the 
integration of comparative risk analysis into agency priority setting 
and budget.
  Glenn-Chafee goes past S. 1080, the Omnibus Regulatory Reform bill 
that passed the Senate overwhelmingly in the 1980's. And no one can 
seriously dispute the fact that the Glenn-Chafee substitute is a strong 
regulatory reform bill. Again, it passed the Governmental Affairs 
Committee with statements of just how strong it was just a few months 
ago by a unanimous bipartisan vote.
  How does that compare to Dole-Johnston? Dole-Johnston would impose 
new and sometimes conflicting decisional criteria, essentially 
displacing standards in existing laws by forbidding issuance of any 
rule unless the criteria are met. This is one of the most troubling 
features of the proposal. And one of my concerns about Dole-Johnston is 
that it would so encumber agencies that it would swamp the regulatory 
process rather than reform it, making it a greater burden rather than a 
lesser one.
  No one can disagree--I do not think anyone is arguing against this--
that we should only have rules where the benefits justify the cost. The 
Glenn-Chafee substitute has that standard. It requires every agency to 
certify that the benefits justify the costs, and if it cannot so 
certify, to explain why.
  The way that the Glenn-Chafee bill works is that since all major 
rules are presented to Congress 45 days before they take effect, if 
there is a rule which the agency head says is appropriate for whatever 
reasons but that the benefits do not justify the cost, we in Congress 
will then have an opportunity to decide whether or not such a 
regulation whose benefits do not justify its costs should take effect. 
There will be times where we will decide it should, for whatever 
reason. It may be that the underlying law requires it. But where an 
agency head, as part of the cost-benefit analysis, tells us that the 
benefits do not justify the cost, we then are in the position to decide 
whether or not it is still our intention that the rule go into effect. 
That is the real power of the legislative review process.
  An agency may also not be able to certify that the benefits justify 
the cost because the underlying statute may have required that the 
agency regulate without regard to the cost effect.
  Congress may have decided that an agency should issue a rule 
establishing the safe level of a toxic element in the air and that we 
want that level achieved regardless of what the cost implications might 
be. So assessing the cost and the benefits may simply not be an option 
for that agency. Well, we want the agency to tell us that so that we, 
elected officials, accountable to the people, can decide: Do we really 
want to impose a rule that has costs which cannot be justified by the 
benefits? We may pass laws that say that, but when it comes to the 
rulemaking, we should have an opportunity and be forced to consider the 
actual costs that we are imposing on this society. We have that in the 
Glenn-Chafee substitute.
  Now, the Dole-Johnston substitute has a different approach. It says 
specifically that an agency cannot regulate unless it finds that the 
benefits justify the costs, or if the rule cannot satisfy that 
criteria, the rule must meet three other tests including that it adopts 
the least cost alternative and that it results in a significant 
reduction in risk.
  Last week, we adopted an amendment that reaffirmed what the sponsors 
of the bill had been saying in this Chamber, that the decisional 
criteria of their bill do not override any existing statute--and that 
was an important issue to clarify--that where there is a conflict 
between an underlying health, safety or environmental law and the 
decisional criteria of Dole-Johnston, it is intended that the 
underlying statute govern. But the problem is that probably in most 
cases there will not be a direct conflict. And in those cases the Dole-
Johnston decisional criteria could be interpreted as governing. So now 
let us look at the criteria.
  Least cost of the Dole-Johnston decisional criteria would require 
that an agency pick the least cost alternative in choosing how to 
regulate. Now, on the surface that may sound right, going with the 
least expensive, but once the surface is scratched, this approach not 
only fails the commonsense test, it is inconsistent with the cost-
benefit test.
  Why would we want to restrict Federal agencies to picking the 
cheapest way to regulate when in many cases it will not be the best way 
to regulate and will not be the most cost effective way to regulate? 
Why would we want to deny agencies from getting the biggest bang for 
the buck out of the regulatory scheme? If going with the cheapest were 
always the best approach, we would all be driving Yugos.
  Now, if, for $100 million in costs, we can save 1,000 lives, but for 
$110 million in costs, we can save 2,000 lives, ought we not be able to 
go with the slightly more expensive approach for double the savings in 
lives even though the lower cost-smaller savings in lives approach 
might meet the minimal statutory criteria?
  Statutes usually have a range. They usually describe things in terms 
of minimal safety and allow discretion for the agency. Do we want to 
tell an agency that you cannot spend that extra 10 percent to double 
the savings in lives? Is that really what we want to do? Then why do 
the cost-benefit analysis? There is an inconsistency.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mr. LEVIN. I will be happy to yield for a question. But before I do 
yield, let me say this. I am going to get to the issue which the 
Senator and I have discussed over the last few days, which is whether 
or not there is an exception then to the least-cost approach. I am 
going to address that issue immediately and then perhaps he could ask a 
question after I address the exception which the Senator from Louisiana 
has pointed to as to why we are not driven always to least cost. I know 
that is the Senator's position. However, the language is quite clear. 
And I will be addressing what he calls an exception to show that it is 
not an exception. But I would be happy to get into that issue.
  Mr. JOHNSTON. Is the Senator seriously saying that if you can save, 
what 

[[Page S 10193]]
was it, 10,000 lives for $1 million, that for an extra $100,000 you 
could not save another 1,000 lives--is the Senator really saying that 
he believes that about our bill?
  Mr. LEVIN. I do, because that is clearly quantifiable. I just 
quantified it. And that is the way the agencies read the Dole-Johnston 
bill, and that is why the agencies have written a statement, and that 
is why the bill should be amended, and that is why we have discussed an 
amendment, one of a number of amendments to the Senator's bill. Since I 
have just quantified it, it is not eligible for the exception. The 
exception only applies where it is not quantifiable, and I have just 
given a quantified exception.
  I have just said for $100 million you can save 1,000 lives, but for 
$110 million you can save 2,000 lives. Now, the Senator is going to say 
and has said, well, that is nonquantifiable and therefore it is subject 
to this exception, to the least cost approach because the value of a 
life cannot be quantified.
  First of all, agencies do quantify it, but, second, in my 
hypothetical I have quantified it precisely and that is the way the 
agencies read this language. So we can sit here all day and debate as 
to whether or not, when you have 1,000 lives as a quantified benefit, 
that is quantified or nonquantified since for many of us the value of a 
life cannot be quantified.
  Mr. ASHCROFT. Will the Senator yield?
  Mr. LEVIN. But the agencies read it this way, and I think it should 
be clarified.
  I will be happy to yield for a question.
  Mr. ASHCROFT. Will the Senator say that the benefit is the same 
benefit if 100,000 lives are saved or if 200,000 lives are saved?
  Mr. LEVIN. No.
  Mr. ASHCROFT. It is a different benefit.
  Mr. LEVIN. I would say a different benefit, both quantified but they 
are different.
  Mr. ASHCROFT. Both quantified. And the cheapest 200,000 lives would 
be a separate calculation.
  It seems to me, if those are different benefits, the agency would not 
be required then to employ the so-called cheapest but could employ, it 
could employ the benefit for the greater savings because it is a 
different benefit and the calculation would be the cheapest for that 
different benefit.
  Mr. LEVIN. I would think the agency should be able to do it, but 
under this language the only exception, certain exception to the 
requirement is to take the least costly approach. And you can only do 
it where it is a nonquantifiable benefit, and I think the Senator would 
agree with me this is a quantifiable benefit.
  Mr. ASHCROFT. That is right. But since it is a different benefit, it 
is a different calculation. It seems to me that if the benefit is 
different, that if the extra lives mean it is a different benefit----
  Mr. LEVIN. It is the same rule.
  Mr. ASHCROFT. It is the same rule. But if it is a different benefit, 
then it is a different cost-benefit ratio and the cheapest for the 
different benefit is the superior one for which the Senator has argued.
  Mr. LEVIN. You would think that the agency in applying that rule 
ought to be able to spend the extra 10 percent to double the number of 
lives.
  Mr. ASHCROFT. My view is and my question was----
  Mr. LEVIN. Would the Senator agree with that?
  Mr. ASHCROFT. I would agree that for a nickel more you can go first 
class is the old way of saying that, and if first class means that you 
get more lives saved per value committed, I think we would want to be 
able to do that.
  Mr. LEVIN. I think so, too.
  Mr. ASHCROFT. My sense is that if it is a different benefit----
  Mr. LEVIN. The number is different. If the Senator says a different 
benefit, the number is different. It is twice as large.
  Mr. ASHCROFT. That is correct. And it seems to me that means this 
bill should be driving that--that if the number is different, it is a 
different benefit, and we should get to that number the cheapest way 
possible. In getting to any other number, the cheapest way possible 
should be our objective. If we decide to save 120,000 lives, there is a 
cheapest way to get there. And if we want to save 100,000 lives, there 
is a cheapest way to get there. And it seems to me, since those are 
different benefits, the Dole-Johnston proposal would allow us to get to 
those benefits by the cheapest strategy.
  Mr. LEVIN. I think I would agree with the Senator that we ought to 
try to have a cost-benefit in what we do. The problem is that when we 
legislate, we do not say save 1,000 lives or we do not say save 2,000 
lives. What we say is that the agency should regulate emission of a 
certain element going into the air in order to achieve a safe level. 
And then we give to the agencies typically, because we do not know here 
precisely what that safe level is frequently, some discretion. And then 
the agency is told to do a cost-benefit analysis.
  That is our requirement in this bill, to do a cost-benefit analysis. 
Now the agency says--and this is my hypothetical--the agency cost-
benefit analysis says, for 100 million bucks, you are going to save 
1,000 lives. If you want to spend $110 million, you are going to save 
2,000 lives.
  Mr. ASHCROFT. You are doing something else; you are doing something 
different.
  Mr. LEVIN. If the Senator will yield, that is what the cost-benefit 
analysis describes to the agency doing that analysis. The point is, 
will you allow the agency, using that cost-benefit analysis, to go to 
the $110 million instead of $100 million, even though the $100 million 
may meet the minimum threshold, since there is a range allowed by 
definition, or else you would not be doing the cost-benefit analysis? 
You would not need to. It would not be as relevant as it otherwise 
should be. You are doing a cost-benefit analysis most of the time 
because a range is permitted, and if a range is permitted under the 
statute, the question is then, will you allow the agency discretion to 
implement something more expensive than the least costly, if you can, 
for a small incremental amount to significantly increase the benefit?
  I think the intention of the sponsors is to allow the agency to do 
so. However, we have pointed out over and over again that the language 
of the bill does not permit the agency to do it, because it says that 
unless the benefit is nonquantifiable--nonquantifiable--you cannot go 
to anything but the least costly.
  Mr. JOHNSTON. Will the Senator yield on that point?
  Mr. LEVIN. So we have urged the sponsors to strike the word 
``nonquantifiable'' before ``benefit.'' When the word ``benefit'' is 
defined earlier in the statute, it says ``quantifiable or 
nonquantifiable.'' But in this exception to the requirement for least 
cost, the limitation of nonquantifiable is before the word ``benefit.'' 
In my hypothetical, I have given a quantifiable benefit, 1,000 versus 
2,000 and $100 million versus $110 million. Then the agencies read this 
and I read this as being a quantifiable benefit, thereby not subject to 
the exception.
  The Senator from Louisiana has argued that that is a nonquantifiable 
benefit because you cannot quantify the value of a human life. Even if 
that were conceded, the problem is that the benefit that we are 
quantifying here is the number of human lives, and agencies read that 
as a quantifiable benefit. I happen to think the intention of the 
sponsors is that you are or should be allowed to go to something more 
expensive than the least costly. That is what they keep telling us. But 
the language remains restricted in that way, and that is what I am 
addressing.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. LEVIN. I will be happy to.
  Mr. JOHNSTON. If we struck that word ``nonquantifiable,'' I take it, 
it would solve the Senator's problem?
  Mr. LEVIN. It would solve that particular problem in the criteria. 
That is one of three problems, and it would solve that problem.
  Mr. JOHNSTON. If the Senator will yield the floor, I am prepared to 
offer such an amendment.
  Mr. LEVIN. I am not prepared to yield the floor. I will yield in 
about 10 minutes.
  Mr. JOHNSTON. All right. I have an amendment prepared to that effect.
  Mr. LEVIN. I would like to finish my statement, and then I will be 
happy to yield. I want to commend the Senator 

[[Page S 10194]]
for that change which has been the subject of about a day's debate 
here.
  There is another criterion, so-called decisional criterion, in Dole-
Johnston which is that the regulation must result in a significant 
reduction in risk. That is another hurdle that the agency has to go 
through before an agency is allowed to regulate. This one does not make 
sense either.
  What if an agency can reduce the risk for very little money but 
cannot prove that it is a significant reduction in the risk? Should an 
agency be able to regulate if there is a reduction in the risk to our 
safety or our food or the environment which may be not a significant 
reduction but is a reduction and is worth doing on a cost-benefit basis 
because the cost is so slight that even though the benefit is not 
major, nonetheless it is justified?
  Dole-Johnston would establish a whole new standard and would require 
the agencies to show that the reduction in risk is significant, even 
though the cost might be minimal.
  The Department of Transportation has informed us that if they had to 
meet this test when regulating for shoulder belts or for lap belts for 
the back seat, that they may not have been able to have met that test. 
The shoulder belt lessens the risk by 10 percent over the reduction in 
the risk for the lap belt, and they are not confident that would meet 
the test for significant. But the cost may be so nominal that they may 
decide it is worth doing anyway, although the benefit is not a major 
benefit.
  So there is another problem with the decisional criteria which can be 
addressed by striking that word so that the cost-benefit analysis will 
be driving this, even if the benefit is modest, where the cost is far 
more modest.
  Another problem with Dole-Johnston is that each of the decisional 
criteria that they set forth--and we have discussed two of them here--
establishes another basis for legal challenge. Each of these criteria 
forms the basis for judicial review and judicial second-guessing of the 
agency's rulemaking decision.
  For instance, if the agency decides benefits justify the cost, did 
the agency pick a rule that provides for market-based and performance-
based standards? Did the agency pick a rule that was least costly? Were 
there any other alternatives slightly less costly? Does the rule 
provide for significant reduction in risk? What is significant? Was the 
agency right in valuing the risk reduction as significant?
  The litigation that is possible with these decisional criteria is 
almost endless. The whole judicial review problem with Dole-Johnston is 
another major issue of concern, and we have spent some time discussing 
this with the sponsors, both on and off the floor.
  We believe, based on what agencies tell us, that courts would be 
asked to interpret over 100 different issues. One massive golden 
opportunity for litigation is the requirement in the bill that an 
agency consider and do a cost-benefit analysis on every reasonable 
alternative presented to them. This is not limited to a significant 
number of reasonable alternatives. The agency is required to respond 
and do a cost-benefit analysis for every reasonable alternative for 
regulation, and this is all subject to judicial review.
  What does that mean? Say an agency is issuing a rule to establish a 
health or safety standard for a toxic substance in drinking water. They 
are looking at--I am making up a substance, a number here--the agency 
is looking in the range of 12 parts per billion of a certain substance. 
What happens if somebody suggests 11\1/2\ parts per billion; someone 
else suggests 12\1/2\ parts per billion; someone else suggests 11 parts 
per billion; someone else 13 parts per billion? Each of these, let us 
assume, the agency considers to be a reasonable alternative. Under 
Dole-Johnston, that requires the agency to consider and do a cost-
benefit analysis on each of these possibilities. That analysis would 
then be subject to judicial review to see why the agency did not pick 
one of those other reasonable alternatives. It is endless.
  Another aspect, a judicial review problem of Dole-Johnston is the 
fact that the bill allows for interlocutory appeals of an agency's 
determination as to whether or not a rule is major, whether or not it 
should be subject to a risk assessment, whether or not it should be 
subject to a regulatory flexibility analysis.
  This is unprecedented in 50 years of the Administrative Procedure 
Act. We have not had interlocutory appeals under the Administrative 
Procedure Act. This is the opportunity to go to the court and have 
judicial review of an agency action before the action is taken, before 
it is finalized.
  In this case, that means that after an agency has issued a notice of 
proposed rulemaking, a party--it is not clear what level of standing 
would be required by a party in order to bring an interlocutory 
appeal--but a party to the notice of rulemaking may take the agency to 
court within 60 days to challenge the agency's preliminary decision 
that a rule is not major, does not need a risk assessment, does not 
need a regulatory flexibility analysis.
  When a rulemaking is at its early stages, the public is expected to 
make comments to the agency about the impact of the rule. It may be 
that during the rulemaking process, the agency is presented with new 
and sufficient evidence for the agency to decide that indeed the rule 
is a major rule, or is one that does require a risk assessment, or one 
that does require regulatory flexibility analysis. But with the 
interlocutory appeal, if a party did not challenge the agency at the 
beginning of a rulemaking, it is foreclosed from raising a challenge at 
the end of the rulemaking, regardless of what is learned during the 
actual rulemaking process. And that is why, when we were considering 
the Nunn-Coverdell amendment, I noticed that I thought this was going 
to hurt small businesses and small governments because they are going 
to lose the opportunity of learning about the impact of a rule from 
rulemaking so that they can challenge those critical issues after the 
final rule is adopted.
  They are given an opportunity to challenge it early when there is a 
preliminary notice, but unless they take that interlocutory approach, 
they are then foreclosed from appealing at the end of the process, 
after they know the facts upon which they can make the appeal. We are 
not doing a favor to small businesses when we are doing that.
  On the other hand, if we allow them both at the beginning and the 
end, then you are going to have excessive litigation and two bites at 
the apple. So the alternative that the Administrative Procedure Act 
used all these years is to say you can appeal these decisions at the 
end of the rulemaking process. But what this bill does for the first 
time is creates this interlocutory appeal early in the rulemaking 
process, thinking we are doing a favor for small businesses and small 
governments and, in fact, we are not doing so at all.
  Now, another consideration is the strong concern by the Justice 
Department that the court will entertain requests by a party bringing 
an interlocutory appeal to suspend the rulemaking during the court's 
consideration of the appeal. That is a logical request; we are making 
an interlocutory appeal early in the rulemaking and suspending the 
rulemaking pending the appeal. Although it is not expressly permitted 
by the legislation, it is not expressly prohibited either. Should the 
courts begin granting these delays, months, and perhaps years, would be 
added to the rulemaking process.
  The Glenn-Chafee substitute permits judicial review of an agency's 
determination as to whether or not a rule is major, but that occurs 
after the final rule is issued. The knowledge that a rule can be 
challenged at the end on that basis will make an agency proceed with 
its determination very carefully. It is an important deterrent, knowing 
that its decision on that issue and a number of other issues are 
subject to appeal at the end of the process.
  Another problem with the judicial review in the Dole-Johnston 
substitute is the change that it makes to section 706 of the 
Administrative Procedure Act. That is another big difference in these 
two pieces of legislation. The Dole-Johnston bill not only establishes 
requirements for cost-benefit analysis, risk assessment, and for major 
rulemaking, but it also rewrites the Administrative Procedure Act, 
which applies to all rulemaking, and, in doing so, rewrites almost 50 
years of case law. 

[[Page S 10195]]

  With respect to judicial review, the Dole-Johnston substitute adds a 
new standard for judicial review of an agency's rulemaking. For 50 
years, the standard has been arbitrary and capricious for informal 
rulemaking and substantial evidence for formal rulemaking. The Dole-
Johnston substitute adds a third--substantial support in the rulemaking 
file for the factual basis of an informal rulemaking.
  Now, I do not know the difference between substantial support and 
substantial evidence. But I do know it will be a greatly litigated 
issue. It may make great business for the legal community, but 
otherwise, it is going to be doing nothing but producing mischief.
  I have been advised that some judges have stated there is very little 
difference between the substantial evidence and the arbitrary and 
capricious test. Other courts have articulated a difference, concluding 
that the arbitrary and capricious test is more deferential to agency 
decisionmaking.
  Now, the Dole-Johnston substitute would add a whole new test, and 
briefs will be filed and cases developed, splitting the hairs between 
substantial support and substantial evidence. Of course, the difference 
between both is arbitrary and capricious. We should not do it. There is 
no reason given here to do it. We are adding a new test without any 
clarity. It is the difference between that test and the one currently 
applied in the Administrative Procedure Act. We are not doing anybody 
who has to live in that regulatory process a favor by doing that.
  Now, another serious problem with the Dole-Johnston substitute is the 
provision on how existing rules are to be reviewed, or lookback, as 
many of us call it. Now, lookback is important. It is important because 
we want rules that have been in existence for years and which have gone 
unchallenged, but which may be causing serious problems, to be reviewed 
under the new standards and the requirements of regulatory reform. But 
how we do that is very important.
  The Dole-Johnston substitute establishes a process by which, every 5 
years, each agency reissues a schedule for the review of rules. A rule, 
once put on the schedule, is to be reviewed within 10 years. However, 
Dole-Johnston permits a private party to petition to have a major rule 
added to the schedule for review, and if it is, then that major rule 
must be reviewed within 3 years. The 10-year review cycle for these 
added rules is telescoped to within the next 3 years.
  S. 343, as originally introduced, was severely criticized because, 
through the use of multiple petitions--that is, request the agencies to 
take certain actions--outside parties would be able to control the 
priorities of a Federal agency and divert and direct Federal resources. 
While an attempt has been made to address that problem, it still 
remains.
  By allowing persons to petition to get major rules added to the 
schedule and then reviewed within 3 years, we are right back where we 
were when the original S. 343 was introduced, by having agency 
priorities dictated by outside parties. Moreover, the bill allows an 
outside party to petition to place a major rule on the schedule of 
rules to be reviewed, even if the agency is already included in the 
schedule. So even though the agency has included a rule on the schedule 
to be reviewed, an outside party could petition the agency to include 
it on the schedule to be reviewed. Why? Because that way it gets an 
earlier review. The agency may have said we are going to review it in 
the fourth, fifth, or seventh year, and a party not satisfied with 
that, even though the rule it is worried about is already on the 
petition, is nonetheless going to ask that it be put it on the schedule 
anyway, because when it wins--and it will win because, by definition, 
the agency would concur with it--this time the party will get its rule 
reviewed within 3 years.
  Now, what that means is hundreds of people in each agency, having an 
interest in rules, every 5 years is going to be jockeying for where on 
a schedule of review its rule is going to be, and that is judicially 
reviewable.
  Now, mind you, it can take up to 10 years to review the rules on that 
schedule. But every 5 years every agency--many of them with hundreds of 
rules and thousands of petitioners--is going to have to adopt a 
schedule, and the schedule is judicially reviewable. It probably would 
take 5 years just to review the petition and the judicial appeals of 
people jockeying for support for where on a schedule their rule is 
going to be reviewed.
  Finally, we get through all the appeals, if the courts can figure all 
this out. Hundreds of petitioners, hundreds of rules, each agency, the 
5 years comes and what happens? Presumably, you would think the agency 
would have 10 years in which to find and implement the schedule. No, 
every 5 years they have to issue a new schedule. Right in the middle of 
a 10-year review period they have to issue a new schedule which is 
subject to judicial review.
  This is a prescription for regulatory hash. This is going to be 
nothing but a litigious mess with this kind of a system.
  We are not doing people a favor who are now bedeviled by a regulatory 
process, who are now wasting a fortune in complying with rules that we 
should not have adopted; that now we are in court all the time 
challenging agencies, by adopting a system which says that we will 
review rules, where on the schedule they go. It is all subject to 
litigation. Anybody can challenge it. If it is not on the schedule, 
that is subject to litigation.
  Every agency has its own schedule. There could be hundreds of rules 
that an agency is implementing. That is not an unusual number. There 
could be thousands of people who are interested in those rules who 
would have standing to challenge that schedule.
  Finally, if you can get through that, if you can get through that 
whole bunch of roadblocks and hurdles, when you are ready to start to 
implement the schedule, a new 5-year trigger begins. You have to start 
all over again.
  This is one of the reasons why we say that this approach is too 
cumbersome and that we will swamp the regulatory process instead of 
simplify it, and instead of eliminating the pieces of it which are 
driving folks nuts.
  There is broad agreement in this body that we have overregulated, 
that too often we have imposed costs without adequate benefits, that we 
ought to require cost-benefit analysis and risk assessment, that we 
ought to look back at existing rules. I do not think there are two 
Members of this body that do not agree with those principles.
  The problem is whether or not we can implement this in a way which 
will allow agencies to breathe, so they can carry on their functions of 
preserving the health, safety and welfare of this Nation, where we want 
them to do it. Can we strip away from them the excess, without dumping 
on them such impossible tasks that we are going to tangle up the 
process so that nothing can get done, and benefit nobody.
  We have businesses that want these rules to be reviewed. I think most 
Members in this body want to review existing rules according to new 
standards, but we have to do it in a way that works; otherwise we can 
vote aye and think we are doing something good for our society, and end 
up creating a monster.
  Every denial of a petition to be on the schedule is subject to 
judicial review. Then we have 60 days after publication of a final 
schedule to sue, to have the court review the appropriateness of the 
schedules as a whole, or the denial of an individual petition to place 
a major rule on the schedule.
  All of these cases, in all of these agencies, are supposed to be 
heard in a circuit court of appeals for the District of Columbia, and 
they all have to be filed in the same timeframe. The court of appeals 
will have to review all these schedules and all these petition denials 
in about the same time.
  Now, additionally, Mr. President--and I am almost done--there are 
serious problems with the multiple petitions that are permitted by this 
legislation. The Dole-Johnston bill adds several new things that you 
can ask an agency to do within a certain time period and have a denial 
subject to judicial review. Current law allows petitions to an agency 
at any time for the issuance, amendment, or repeal of a rule. That is 
under current law.
  So if you ask an agency to issue a rule, amend a rule or repeal a 
rule, you can file a petition, but there is no deadline in current law 
by which an agency has to respond. If an agency does not respond to 
that request, a petitioner 

[[Page S 10196]]
can go to court and force the agency to respond to the petition, if the 
agency fails to do so.
  Now, that is current law. So there is an opportunity to go to court 
in that narrow area where an agency fails to respond to a petition for 
the issuance, amendment, or repeal of a rule.
  The Dole-Johnston substitute expands current law on petitions by 
adding to the Administrative Procedure Act two additional purposes for 
which an interested person can petition an agency. You can ask for the 
amendment or repeal of an interpretive rule, or the amendment or repeal 
of a general statement of policy or guidance. You can ask for the 
interpretation regarding the meaning of a rule or the meaning of an 
interpretive rule or general statement of policy or guidance.
  Whereas, under current law if you ask for the issuance, amendment, or 
repeal of a rule, and the failure to respond is subject to a court 
intervention, under the Dole-Johnston substitute, if you ask an agency 
to amend or repeal or interpret an interpretive rule, general statement 
of policy or guidance, that also, now, becomes subject to judicial 
review.
  Agencies do a lot more than issue rules. They issue guidance all the 
time, interpretations all the time, statements of policy all the time, 
probably by the thousands, in order to help people understand and work 
through a complicated regulatory system.
  Under Dole-Johnston all of that--I do not know and no one knows how 
many thousands, tens of thousands, or hundreds of thousands of requests 
there are for interpretation and guidance that are filed with these 
agencies each year; we do not know--will now be subject to deadlines 
and to judicial review. That is the block that we are superimposing on 
this regulatory process.
  The agency can either deny or grant those requests for all of that 
material within 18 months. Judicial review is immediate upon a denial. 
This, again, is going to dramatically change an agency's control over 
its priorities and its resources. Agencies can just simply be 
overwhelmed--and I emphasize, this is new. The ability to submit a 
request is not new. They have been asked for a decade. What is new is 
that now all these requests for guidance and interpretation are now 
going to be subject to deadlines and court review. That is what is new, 
massively new, overwhelmingly new.
  We should be trying to downsize Government, not swamp it. We should 
not let the agencies become total victims of random and multiple tugs 
and pulls from either individuals or interests that have special axes 
to grind.
  Agencies also have a national purpose to be achieved. They have not 
done an adequate job of responding to individuals. Everyone in our 
office spends too much time trying to force agencies to respond to our 
constituents--sometimes just to respond, much less to respond fairly or 
in an appropriate way.
  They have to do a much better job. This will overwhelm an agency by 
providing court appeals, following deadlines, even where there is a 
response, because the response is subject to judicial review.
  Now, there are two additional opportunities, in addition to what I 
have just said, that Dole-Johnston makes available to people who are 
making requests of rulemaking agencies.
  Any interested person can petition an agency under Dole-Johnston to 
review a risk assessment, other than a risk assessment that is used for 
a major rule. The agency must act within 180 days under that petition 
and the agency denial of the petition would be judicially reviewable as 
a final agency action.
  Also, any person subject to a major rule can petition an agency to 
modify or waive specific requirements of the major rule and authorize 
such person to demonstrate compliance through alternative means not 
otherwise permitted by the major rule. The agency must act on that 
petition within 180 days.
  Now, while there appears to be no judicial review of any agency 
action with respect to this latter petition process, nonetheless, given 
the number of people who are subject to major rules, an agency could be 
flooded with petitions for alternative means of compliance, each of 
which would have to be responded to within 180 days.
  A big part of the legislation which all of us are working on, and 
some of us are struggling with, is to get agencies to prioritize their 
regulatory activity so that we are putting Government resources on the 
most important risks, the most important dangers, and not spending 
excessive time and effort with less significant matters. Opening each 
and every agency to their responsibility to not only respond but to 
defend against hundreds, probably thousands of new kinds of petitions 
for specific regulatory actions, takes us in the opposite direction. 
The Dole-Johnston substitute tries to address it by providing for a 
consolidation of some of the petitions that are permitted in the bill, 
and for the judicial review of those petitions. But that is only for 
petitions relating to major rules. Petitions related to nonmajor rules 
are treated the same as the original Dole bill and can be made at any 
time and as often as people like.
  Dole-Johnston provides a procedure for the review of existing rules. 
Each agency would be required to issue a proposed schedule for the 
review of rules which can contain major and nonmajor rules. Those 
schedules would be subject to public notice and comment. Private 
persons can also petition an agency to add a major rule to the 
schedule. A petitioner has to show that the rule is major and that 
there is a substantial likelihood that it does not meet the decisional 
criteria in the bill. All the petitions must be filed within a limited 
time period while the schedule for the review of rules is being 
considered. The schedule is issued every 5 years, and rules on the 
schedule are to be reviewed within 10 years, as we have said, with the 
possibility of a couple of years' extension.
  However, if a petitioner is successful, the Dole-Johnston substitute 
provides that the review of the petitioned rule gets bumped up to the 
first 3 years of the 10-year period. So any rule that is added to the 
schedule by petition must be reviewed, not within 10 years, but within 
3 years. And, if it succeeds, it then bumps a rule that was already 
within that 3-year period, presumably, since there are a finite number 
of rules that can be reviewed within a 3-year period.
  So you are going to have all the jockeying and all the petitions 
filed in the court in order to try to get a position on the schedule 
which is high up. And if one fails, then there is a petition to get on 
the schedule so that you can get a higher position. Once the final 
schedule for each agency is published, again, parties will have 60 days 
to file suit and suit can be brought to challenge the denial of being 
on the schedule. Or even in the event that you are on the schedule, 
again, you can bring a suit in order to improve your position.
  Mr. President, let me conclude by saying this. The Dole-Johnston 
substitute simply goes too far. In its effort to reform it will swamp 
the very process that it sets out to repair. It is not reform, it is 
bureaucratic overload. It is like throwing a bucket of water to a 
drowning person instead of a rope. The Glenn-Chafee proposal, that we 
will be considering later on today and voting on, embodies the bill 
passed by the Governmental Affairs Committee. It is reform, it is not 
overload. We simply must do two things and can do two things. We can 
have reform of the regulatory process, but we can do it in a way that 
does not jeopardize important health, safety, and environmental 
protections which have improved our lives in America.
  We want to be able to trust the water we drink and the food that we 
eat and the air that we breathe and the planes that we fly and the 
bridges that we cross. And we can have that. We can avoid regulatory 
excess. And the way to do that is to adopt the Glenn-Chafee substitute.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. INHOFE). The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, the amendment I am offering with Senator 
Glenn and many of our other colleagues is a solid proposal for 
regulatory reform. The purpose of regulatory reform legislation is to 
improve the quality of the regulations that are issued by the Federal 
agencies. That is what we are trying for. What we want to do is to weed 
out the bad rules, the rules that do not make sense. We want 

[[Page S 10197]]
the science and the economics used to design rules to be of the best 
quality. And we want rules with flexibility built in, to make the 
compliance burden as small as possible.
  I believe the Glenn-Chafee substitute accomplishes many reforms. Let 
us tick a few off. It requires a cost-benefit analysis for every major 
rule. It requires agencies to select the most cost effective option 
that achieves the goals establish by the law. It requires agencies to 
select regulatory options that provide the greatest flexibility for 
compliance and recognize the compliance difficulties faced by small 
businesses and towns, small towns. It requires rules with costs that 
are greater than the benefits to be identified before they are 
promulgated. It requires OMB to review the cost-benefit studies in an 
open process that gives access to all those with an interest. It 
establishes expedited procedures for Congress to review major rules 
before they become effective, so that poorly drawn rules with 
unjustified costs can be stopped. That is the 60-day review process 
that we have. It includes clear principles for risk assessment. It 
requires each agency to establish a peer review process, ensuring that 
the science used to make important determinations is the best 
available. It requires agencies to develop an agenda to review existing 
rules and to repeal rules that are no longer needed or that cost too 
much.
  It gives courts authority to enforce the review requirements of the 
Regulatory Flexibility Act, ensuring that rules affecting small 
businesses and small towns recognize their compliance problems. And it 
requires agencies to reexamine budgetary and enforcement priorities and 
to modify programs to maximize the reduction in risks to health and to 
the environment.
  OK, it does all of those things. These are important steps that will 
improve the quality and reduce the compliance burden of Federal 
regulations. Some people have said, ``Oh, the Glenn-Chafee bill is just 
status quo. It just repeats what we have now.'' That is absolutely not 
so, as he have delineated in the prior points. Now, these are important 
steps that will improve the quality and reduce the compliance burden of 
Federal regulations. I am confident that these steps can be taken 
without undermining our environmental or health laws.
  But there are several other things, so-called reforms, that this bill 
does not have. And they are not reforms at all, they are steps 
backward.
  It does not include extensive special interest petitions to force 
endless rounds of review for every new and existing rule, risk 
assessment, and enforcement action taken by an agency. That is what 
Senator Levin was talking about.
  It does not direct agencies to pick the least costly action a statute 
allows. Under the least cost approach an agency can not go for a 
slightly more expensive approach that will produce many more benefits. 
You are locked in at the lowest cost, and that is not good.
  It does not allow Federal judges to second-guess the complex data, 
assumptions, and calculations that are developed through risk 
assessment to support a rule. The judges cannot go fishing back into 
all of that.
  It does not automatically sunset existing rules because an agency did 
not have the resources to carry out a review ordered by a court.
  It does not waste millions and millions of taxpayers' dollars on 
studies and assessments and lawsuits for minor rules.
  And it does not delay for months, even years, needed and justifiable 
rules to protect health and safety and the environment while endless 
rounds of review are conducted to ensure that rules meet a standard of 
near perfection.
  Senator Glenn has many times suggested a two-part test for the Senate 
to use in comparing these two bills. I recommend to my colleagues that 
they pay attention to these two points.
  First, would the bill produce better rules, rules that are more cost 
effective and have a foundation in good science and economics?
  Second, does the bill threaten to undermine the health, safety and 
environmental protection that has been achieved by the laws we have 
enacted over the past 25 years?
  We want reform without a rollback. That is the test.
  The Glenn-Chafee amendment passes that test. It incorporates all the 
significant reforms that the Senate adopted in 1982 when we considered, 
on this floor, S. 1080. That was a splendid piece of legislation. It 
was acclaimed by all as a thoroughgoing reform. In addition to the 
provisions of cost-benefit analysis and congressional veto that were 
included in S. 1080, the Glenn-Chafee amendment has new principles for 
risk assessment, an agenda to review existing regulations and steps to 
realign priorities based on risk. It goes well beyond S. 1080.
  S. 1080 was adopted on the floor of this Senate 93 to nothing. I 
suspect the distinguished senior Senator from Louisiana voted for it. 
He certainly did not vote against it. Maybe he was not present, but he 
has a good attendance record so I suspect he voted for that bill. It 
was good enough in 1982.
  The Glenn-Chafee amendment would catch poorly drawn or costly rules. 
Cost-benefit analysis is required of major rules. Courts can enforce 
this requirement. OMB is to oversee the preparation of these cost-
benefit studies. The information on the costs and benefits of each rule 
will be sent to Congress, lay over there for 60 days before a rule 
becomes effective. Congress can veto the rule.
  From the debate on this issue it appears that Congress may well 
receive between 500 and 1,000 rules every year under this congressional 
review process. If even a small minority of the Members of this body 
want reconsideration of a particular rule, it will be easy enough to 
ensure that a vote on the resolution occurs.
  Now, I am currently serving as chairman of the Environment and Public 
Works Committee, and I have some concern about the workload that this 
so-called reform will create, having coming before us between 500 and 
1,000 rules every year. But this is real reform. I expect we will be 
voting on many resolutions and many times will force agencies to 
reconsider their rules. If a bad rule gets through, we will have no one 
to blame but ourselves here in Congress; we let it happen. We can stop 
bad rules under the reform provisions that are contained in the Glenn-
Chafee amendment. Once Congress has this veto mechanism in place, 
judicial review will become less important as a method to weed out bad 
rules. Courts will be reluctant to overturn a rule that has been issued 
by the executive branch and cleared in an expedited fashion in 
Congress.
  The Glenn-Chafee amendment will bring significant changes to the 
regulatory process.
  I do not think the underlying Johnston substitute passes the two-part 
test that Senator Glenn has outlined. I am concerned that it may 
prevent timely action to protect human health and safety and the 
environment. I know that is not what the authors intended, but I 
believe it will have this result.
  The reforms are so far-reaching they could paralyze the Federal 
agencies. That is what Senator Levin has been talking about. It is very 
difficult to issue a significant rule to protect human health or the 
environment even under the procedures in place today. With the new 
hurdles erected by the substitute, S. 343, it could well become 
impossible to get a rule enacted.
  Now, Mr. President, last week the senior Senator from Illinois 
described the experience his State had with cost-benefit analysis. 
Illinois passed a law in 1978 with cost-benefit provisions similar to 
those in this Johnston substitute. The Illinois law did not work. It 
was repealed. Everybody in Illinois that had any experience with their 
cost-benefit law will tell you it just plain does not work.
  You do not have to go to Illinois to learn about the experience with 
cost-benefit analysis. We had that experience here with the Federal 
law. We have one environmental law, the Toxic Substances Control Act. 
This is called TSCA. That contains many of the same procedures that are 
set forth in the underlying substitute.
  So we have been down this road before. Now, Yogi Berra said you can 
see a lot by looking, and you can see a lot by looking. We can learn a 
lot from this so-called TSCA experience. The lawyers who wrote this 
bill that is before us now, the Johnston substitute, must have used 
this TSCA experience and the TSCA law as a model. TSCA is 

[[Page S 10198]]
a cost-benefit statute. To issue a rule under TSCA, EPA must determine 
that the benefits of the rule justify the costs.
  Under TSCA, EPA is required to impose the least burdensome 
regulation, just like the Johnston bill does. TSCA requires that all of 
the available regulatory options be considered to determine which is 
the least burdensome.
  Now, this is an important illustration, Mr. President. We have been 
down this road before. We have something actually before us that is 
nearly exactly the same as the Johnston substitute, the so-called Toxic 
Substances Control Act. How did it work?
  EPA, under this TSCA bill, is required to produce substantial 
evidence in the record to support its rulemaking determination. That is 
what the Johnston substitute requires.
  Now, when it was enacted in 1976, many in Congress claimed that TSCA 
would become the most powerful of all the environmental statutes. It 
appears to authorize EPA to regulate virtually any chemical in 
commerce, for any adverse effect, in any environmental medium, in 
products and in the workplace. TSCA was to be the law that integrated 
all our environmental goals under one umbrella.
  However, TSCA has been a disaster. EPA has only attempted one major 
regulatory action since TSCA was passed nearly 20 years ago. EPA worked 
on that one rule for 10 years. It reviewed hundreds of health studies, 
spent millions of dollars reviewing the comments and the data from the 
industries to be regulated. The rule was issued after 10 years, and it 
was immediately challenged in court under the special judicial review 
standards that apply to TSCA, which are the same standards that would 
be imposed on all laws under the Johnston amendment. So we have been 
down this track. Now, what happens? The rule was overturned by the 
Fifth Circuit Court of Appeals.
  I ask unanimous consent, Mr. President, that the opinion of the court 
be printed in the Record after my comments this morning.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. CHAFEE. The reason the court gave for vacating the rule was the 
failure of EPA to provide substantial evidence in the record to support 
its actions. You did not do enough, they said.
  The substantial evidence test does not apply to any other 
environmental laws, only to TSCA, and the only rule ever attempted 
under TSCA was overturned by the courts because EPA did not meet a 
test, a test that under the Johnston amendment would apply to all our 
environmental laws.
  Reading the decision, one gets the impression that even if EPA had 
passed the substantial evidence test, the rule would have been thrown 
out on other grounds. The court said that EPA had not considered a 
sufficient number of regulatory alternatives because it only did cost 
estimates on five options, not all of the possible options. The court 
said EPA had not satisfied the requirement that it impose the least 
burdensome option because it had not presented any evidence the least 
burdensome option was among the five considered.
  One could almost conclude that those who drafted the regulatory 
reform bill before the Senate--in other words, the Johnston 
substitute--did so with the Fifth Circuit Court's ruling in mind. Every 
hurdle that has made TSCA a useless law to protect health and 
environment is rolled up in this bill before us today. It applies 
across all of our health and our safety and our environmental statutes. 
No wonder the administration says it will veto the Johnston bill if it 
passes.
  Mr. President, if the Senate will be guided by the two questions 
Senator Glenn set out--first; will real reform occur; and, second; will 
environmental laws be protected or will they be undermined--only one of 
the two proposals before us today passes that muster. The Glenn-Chafee 
amendment contains a series of steps that will improve the quality and 
reduce the burden of Federal regulations. It does so without 
threatening to undermine our environmental and safety laws.
  The other bill may be described by Senator Johnston as a tougher 
reform bill. No doubt more rules will be blocked by that bill. Under 
that bill, it could well result that Federal regulatory agencies would 
be brought to a virtual standstill. That is what I am confident will 
happen if this bill should ever become law, which fortunately has a 
slim chance of occurring.
  But that is not the goal of regulatory reform, to have the whole 
regulatory process of our Federal Government brought to a halt. I am 
sure Senator Johnston and proponents of his bill believe setting high 
standards for regulations will get better rules. But in making the 
hurdle too high, so high that needed rules, rules that are fully 
justified by their benefits, can never reach the level of perfection 
that is demanded, they are blocked by endless rounds of review.
  While those on the other side may charge that the Glenn-Chafee 
amendment achieves only modest improvement in regulations, I fear that 
the underlying substitute may result in no health and environmental 
regulations at all. If that is the objective, fine. If the objective is 
we do not want any rules, and apparently we are going to pass 
everything in infinite detail in the laws that we pass, that is one 
thing, but certainly, in my judgment, that is not the best course for 
our Nation.
  I thank the Chair.
                               Exhibit 1

  Corrosion Proof Fittings, et al., petitioners, v. the Environmental 
  Protection Agency and William K. Reilly, Administrator, respondents

                              No. 89-4596.

       United States Court of Appeals, Fifth Circuit, Oct. 18, 
     1991.
       On Motion for Clarification Nov. 15, 1991.
       Rehearing Denied Nov. 27, 1991.
       Petition was filed for review of final rule promulgated by 
     Environmental Protection Agency (EPA) under Toxic Substances 
     Control Act section prohibiting future manufacture, 
     importation, processing, and distribution of asbestos in 
     almost all products. The Court of Appeals, Jerry E. Smith, 
     Circuit Judge, held that: (1) foreign entities lacked 
     standing under Act to challenge rule; (2) EPA failed to give 
     required notice to public, before conclusion of hearings, 
     that it intended to use ``analogous exposure'' data to 
     calculate expected benefits of product bans; and (3) EPA 
     failed to give adequate weight to statutory language 
     requiring it to promulgate least burdensome, reasonable 
     regulation required to protect environment adequately.
       The Environmental Protection Agency (EPA) issued a final 
     rule under section 6 of the Toxic Substances Control Act 
     (TSCA) to prohibit the future manufacture, importation, 
     processing, and distribution of asbestos in almost all 
     products. Petitioners claim that the EPA's rulemaking 
     procedure was flawed and that the rule was not promulgated on 
     the basis of substantial evidence. Certain petitioners and 
     amici curiae contend that the EPA rule is invalid because it 
     conflicts with international trade agreements and may have 
     adverse economic effects on Canada and other foreign 
     countries. Because the EPA failed to muster substantial 
     evidence to support its rule, we remand this matter to the 
     EPA for further consideration in light of this opinion.
                                   I

                      Facts and Procedural History

       Asbestos is a naturally occurring fibrous material that 
     resists fire and most solvents. Its major uses include heat-
     resistant insulators, cements, building materials, fireproof 
     gloves and clothing, and motor vehicle brake linings. 
     Asbestos is a toxic material, and occupational exposure to 
     asbestos dust can result in mesothelioma, asbestosis, and 
     lung cancer.
       The EPA began these proceedings in 1979, when it issued an 
     Advanced Notice of Proposed Rulemaking announcing its intent 
     to explore the use of TSCA ``to reduce the risk to human 
     health posed by exposure to asbestos.'' See 54 Fed. Reg. 
     29,460 (1989). While these proceedings were pending, other 
     agencies continued their regulations of asbestos uses, in 
     particular the Occupational Safety and Health Administration 
     (OSHA), which in 1983 and 1984 involved itself with lowering 
     standards for workplace asbestos exposure.\1\
       An EPA-appointed panel reviewed over one hundred studies of 
     asbestos and conducted several public meetings. Based upon 
     its studies and the public comments, the EPA concluded that 
     asbestos is a potential carcinogen at all levels of exposure, 
     regardless of the type of asbestos or the size of the fiber. 
     The EPA concluded in 1986 that exposure to asbestos ``poses 
     an unreasonable risk to human health'' and thus proposed at 
     least four regulatory options for prohibiting or restricting 
     the use of asbestos, including a mixed ban and phase-out of 
     asbestos over ten years; a two-stage ban of asbestos, 
     depending upon product usage; a three-stage ban on all 
     asbestos products leading to a total ban in ten years; and 
     labeling of all products containing asbestos. Id at 29,460-
     61.

[[Page S 10199]]

       Over the next two years, the EPA updated its data, 
     receiving further comments, and allowed cross-examination on 
     the updated documents. In 1989, the EPA issued a final rule 
     prohibiting the manufacture, importation, processing, and 
     distribution in commerce of most asbestos-containing 
     products. Finding that asbestos constituted an unreasonable 
     risk to health and the environment, the EPA promulgated a 
     staged ban of most commercial uses of asbestos. The EPA 
     estimates that this rule will save either 202 or 148 lives, 
     depending upon whether the benefits are discounted, at a cost 
     of approximately $450-800 million, depending upon the price 
     of substitutes. Id. at 29,468.
       The rule is to take effect in three stages, depending upon 
     the EPA's assessment of how toxic each substance is and how 
     soon adequate substitutes will be available.\2\ The rule 
     allows affected persons one more year at each stage to sell 
     existing stocks of prohibited products. The rule also imposes 
     labeling requirements on stage 2 or stage 3 products and 
     allows for exemptions from the rule in certain cases.
       Section 19(a) of TSCA, 15 U.S.C. Sec. 2618(a), grants 
     interested parties the right to appeal a final rule 
     promulgated under section 6(a) directly to this or any other 
     regional circuit court of appeals. Pursuant to this section, 
     petitioners challenge the EPA's final rule, claiming that the 
     EPA's rulemaking procedure was flawed and that the rule was 
     not promulgated based upon substantial evidence. Some amici 
     curiae also contend that the rule is invalid because it 
     conflicts with international trade agreements and may have 
     adverse economic effects on Canada and other foreign 
     countries. We deal with each of these contentions seriatim.

                                   II

                                Standing


                                   A

                  Issues Raised Solely by Amici Curiae

       [1] The EPA argues that the briefs of two of the amici 
     curiae, Quebec and Canada, should be stricken because they 
     improperly raise arguments not mentioned by any petitioner. 
     To the extent that these briefs raise new issues, such as the 
     EPA's decision not to consider the adverse impacts of the 
     asbestos ban on the development of the economies of third-
     world countries, we disregard these arguments.\3\ At times, 
     however, the briefs raise variations of arguments also raised 
     by petitioners. We thus draw on these briefs where helpful in 
     our consideration of other issues properly brought before 
     this court by the parties.
       [2] The EPA also asserts that we cannot consider arguments 
     raised by the two amici that relate to the differences in 
     fiber types, sizes, and manufacturing processes because these 
     differences only are raised by the petitioners within the 
     context of prohibiting specific friction products, such as 
     sheet gaskets and roof coating. This is, however, a role that 
     amici are intended to fill: to bridge gaps in issues 
     initially and properly raised by parties. Because various 
     petitioners urge arguments similar to these, we properly can 
     consider these specific issues articulated in the amici 
     briefs.\4\
                                   b

                Standing of Foreign Entities Under TSCA

       The EPA also contends that certain foreign petitioners and 
     amici do not have standing to contest the EPA's final rule. 
     In its final rulemaking, the EPA decided to exclude foreign 
     effects from its analysis. Cassiar Mining Corporation, a 
     Canadian mining company that operates an asbestos mine, and 
     the other Canadian petitioners believe that the EPA erred by 
     not considering the effects of the ban on foreign countries 
     and workers.
       [3] At issue in this case is a question of prudential 
     standing, which is of less than constitutional dimensions. 
     The touchstone of the analysis, therefore, is the statutory 
     language used by Congress in conferring standing upon the 
     general public. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 
     2197, 2206, 45 L.Ed.2d 343 (1975).
       [4] Only those who come within the ``zone of interests to 
     be protected or regulated by the statute'' have prudential 
     standing to bring challenges to regulations under the statute 
     at issue.\5\ Indeed, when a party's interests are 
     ``inconsistent with the purposes implicit in the statute,'' 
     it can ``reasonably be assumed that Congress [did not] 
     intend[ ] to permit the suit.'' Clarke, 479 U.S. at 399, 107 
     S.Ct. at 757.
       The Canadian petitioners believe that Congress, by granting 
     the right of judicial review to ``any person,'' 15 U.S.C.A. 
     Sec. 2618(a)(1)(A) (West Supp.1991), meant to confer standing 
     on anyone who could arrange transportation to the courthouse 
     door. The actual language of TSCA, however, belies the broad 
     meaning the petitioners attempt to impart to the act, for the 
     EPA was not required to consider the effects on people or 
     entities outside the United States. TSCA provides a laundry 
     list of factors to consider when promulgating a rule under 
     section 6, including ``the effect [of the rule] on the 
     national economy.'' Id. Sec. 2605(c)(1)(D) (emphasis added). 
     International concerns are conspicuously absent from the 
     statute.
       [5] Under the ``zone of interests'' test, we liberally 
     construe Congressional acts to favor a plaintiff's standing 
     to challenge administrative actions. Warth, 422 U.S. at 501, 
     95 S.Ct. at 2206. This is not to say, however, that all 
     plaintiffs affected by a regulation or order have standing to 
     sue; ``[i]n cases where the plaintiff is not itself the 
     subject of the contested regulatory action, the test denies a 
     right of review if the plaintiff's interests are so 
     marginally related to or inconsistent with the purposes 
     implicit in the statute that it cannot reasonably be assumed 
     that Congress intended to permit the suit.'' Clarke, 479 U.S. 
     at 399, 107 S.Ct. at 757.
       [6] The Canadian petitioners do not have standing to 
     contest the EPA's actions. Nothing in the statute requires 
     the EPA to consider the effects of its actions in areas 
     outside the scope of section 6. TSCA speaks of the necessity 
     of cleaning up the national environment and protecting United 
     States workers but largely is silent concerning the 
     international effects of agency action. Because of this 
     national emphasis, we are reluctant to ascribe international 
     standing rights to foreign workers affected by the loss of 
     economic sales within this country. We note that the Supreme 
     Court, using similar analysis, recently denied standing 
     rights to workers only incidentally affected by a postal 
     regulation. Air Courier Conference of Am. v. American Postal 
     Workers Union, -- U.S. ----, 111 S.Ct. 913, 112 L.Ed.2d 1125 
     (1991). Indeed, to ``proceed[] at the behest of interests 
     that coincide only accidentally with [the statutory] goals'' 
     of TSCA actually may work to defeat those goals. Hazardous 
     Waste Treatment Council, 861 F.2d at 283. We therefore do not 
     consider the arguments raised by the Canadian petitioners.
       [7] Cassiar separately asserts even closer contacts with 
     the United States and believes that its status as a vendor to 
     an American vendee gives it the right to contest 
     administrative decisions that affect the economic well-being 
     of the vendee. Some courts recognize that vendors can stand 
     as third parties in the shoes of their vendees in order to 
     contest administrative decisions.\6\
       Even if we were to accept this line of reasoning, however, 
     the result would be unavailing. Cassiar's vendee is an 
     independent entity, fully capable of asserting its own 
     rights. Given the purely national scope of TSCA, Cassiar 
     cannot, bootstrap from its vendee simply because it sells 
     asbestos to an American company. Merely inserting a product 
     into the stream of commerce is not sufficient to confer 
     standing under TSCA. If the rule were otherwise, the concept 
     of standing would lose all meaning, for the only parties who 
     would not have standing would be those who sell nothing in 
     the United States and thus are indifferent to federal 
     government actions. There is no indication that Congress 
     intended to enact so loose a concept of standing, and we do 
     not import that intent into the act today.\7\
       Hence, Cassiar does not have prudential standing to bring 
     this claim, because TSCA expressly concerns itself with 
     national economic concerns. Cassiar brings forth no evidence 
     that it actually controls, and does not just deal with, the 
     American vendee. We thus conclude, along the lines of Moses, 
     778 F.2d at 271-72, that parties that Congress specifically 
     did not intend to participate in, or benefit from, an 
     administrative decision have no right to challenge the 
     legitimacy of that decision.
       [8] We draw support for our holding from the decision of 
     the EPA to give a similar construction to TSCA. ``It is 
     settled that courts should give great weight to any 
     reasonable construction of a regulatory statute adopted by 
     the agency charged with the enforcement of that statute.'' 
     Investment Co. Inst. v. Camp, 401 U.S. 617, 626-27, 91 S.Ct. 
     1091, 1097, 28 L.Ed.2d 367 (1971). ``Thus, only where 
     congressional intent is pellucide are we entitled to reject 
     reasonable administrative construction of a statute.'' 
     National Grain & Feed Ass'n v. OSHA, 886 F.2d 717, 733 (5th 
     Cir. 1989).
       [9] We find the EPA's decision to ignore the international 
     effects of its decision to be a rational construction of the 
     statute. Chemical Mfrs. Ass'n v. Natural Resources Defense 
     Council, 470 U.S. 116, 125, 134, 105 S.Ct. 1102, 1107, 1112, 
     84 L.Ed.2d 90 (1985). Because it is unlikely that these 
     foreign entities were ``intended [by Congress] to be relied 
     upon to challenge agency disregard of the law,'' Clarke, 479 
     U.S. at 399, 107 S.Ct. at 757 (citations omitted), we hold 
     that they are
      outside the zone of interests encompassed by TSCA and thus 
     lack standing to protest the EPA's rulemaking.\8\

                                  III

                           Rulemaking Defects

       [10-12] The petitioners allege that the EPA's rulemaking 
     procedure was flawed. Specifically, the petitioners contend 
     that the EPA erred by not cross-examining petitioner's 
     witnesses, by not assembling a panel of experts on asbestos 
     disease risks, by designating a hearing officer, rather than 
     an administrative law judge (ALJ), to preside at the hearings 
     on the rule, and by not swearing in witnesses who testified. 
     Petitioners also complain that the EPA did not allow cross-
     examination of some of its witnesses and did not notify 
     anyone until after the hearings were over that it intended to 
     use ``analogous exposure'' estimates and a substitute pricing 
     assumption to support its rule. Most of these contentions 
     lack merit and are part of the petitioners' ``protest 
     everything'' approach,\9\ but we address specifically the two 
     EPA actions of most concern to us, the failure of the EPA to 
     afford cross-examination of its own witnesses and its failure 
     to provide notice of the analogous exposure estimates.
       [13] Administrative agencies acting under TSCA are not 
     required to adhere to all of the procedural requirements were 
     might require of an adjudicative body. See 15 U.S.C. 
     Sec. 2605(c)(3). In evaluating petitioners' claims, we are 
     guided by our long-held view that an 

[[Page S 10200]]
     agency's choices concerning its rulemaking procedures are entitled to 
     great deference, as the agencies are ``best situated to 
     determine how they should allocate their finite resources.'' 
     Superior Oil Co. v. FERC, 563 F.2d 191, 201 (5th Cir. 1977).
       [14] Section 19(c)(1)(B)(ii) of TSCA requires that we hold 
     unlawful any rule promulgated where EPA restrictions on 
     cross-examination ``precluded disclosure of disputed material 
     facts which [were] necessary to a fair determination by the 
     Administrator.'' 15 U.S.C. Sec. 2618(c)(1)(B)(ii). In 
     promulgating this rule, the EPA allowed substantial cross-
     examination of most, but not all, of its witnesses. 
     Considering the importance TSCA accords to cross-examination, 
     the EPA should have afforded interested parties full cross-
     examination on all
      of its major witnesses. We are mindful of the length of the 
     asbestos regulatory process in this case, but Congress, in 
     enacting the rules governing the informal hearing process 
     under TSCA, specifically reserved a place for proper 
     cross-examination on issues of disputed material fact. See 
     id. Sec. Sec. 2605(c)(3), 2618(c)(1)(B)(ii). Precluding 
     cross-examination of EPA witnesses--even a minority of 
     them--is not the proper way to expedite the finish of a 
     lengthy rulemaking procedure.
       The EPA's general failure to accord the petitioners 
     adequate cross-examination, however, is not sufficient by 
     itself to mandate overturning the rule. The ``foundational 
     question is whether any procedural flaw so subverts the 
     process of judicial review that invalidation of the 
     regulation is warranted.'' Superior Oil Co., 563 F.2d at 201 
     (quoting Alabama Ass'n of Ins. Agents v. Board of Governors 
     of the Fed. Reserve Sys., 533 F.2d 224, 236-237 (5th Cir. 
     1976)). Under this standard, the EPA's denial of cross-
     examination, by itself, is insufficient to force us to 
     overturn the EPA's asbestos regulation.
       [15] We cannot reach the same conclusion in another area, 
     however. The EPA failed to give notice to the public, before 
     the conclusion of the hearings, that it intended to use 
     ``analogous exposure'' data to calculate the expected 
     benefits of certain product bans. In general, the EPA should 
     give notice as to its intended methodology while the public 
     still has an opportunity to analyze, comment, and influence 
     the proceedings. The EPA's use of the analogous exposure 
     estimates, apart from their merits, thus should have been 
     subjected to public scrutiny before the record was closed. 
     While it is true that ``[t]he public need not have an 
     opportunity to comment on every bit of information 
     influencing an agency's decision,'' Texan v. Lyng, 868 F.2d 
     795, 799 (5th Cir. 1989), this cannot be used as a defense to 
     the late adoption of the analogous exposure estimates, as 
     they are used to support a substantial part of the regulation 
     finally promulgated by the EPA.\10\
       We draw support for this conclusion from Aqua Slide 'N' 
     Dive v. CPSC, 569 F.2d 831 (5th Cir.1978), in which the CPSC 
     decided, without granting interested parties the opportunity 
     to comment, that its proposed regulation merely would slow 
     the industry's rate of growth rather than actually cut sales. 
     We rejected the CPSC's rule, and our reasons there are 
     similar to those that require us to reject the EPA's reliance 
     upon the analogous exposure data today:
       [T]he evidence on which the Commission relies was only made 
     public after the period for public comment on the standard 
     had closed. Consequently, critics had no realistic chance to 
     rebut it. . . . It matters not that the late submission 
     probably did not violate the notice requirement of 5 U.S.C.A. 
     Sec. 553. . . . The statute requires that the Commission's 
     findings be supported by substantial evidence, and that 
     requirement is not met when the only evidence on a crucial 
     finding is alleged to be unreliable and the Commission has 
     not exposed it to the full scrutiny which would encourage 
     confidence in its accuracy.
       Id. at 842-43 (citations omitted) (emphasis added).
       In short, the EPA should not hold critical analysis in 
     reserve and then use it to justify its regulation despite the 
     lack of public comment on the validity of its basis. Failure 
     to seek public comment on such an important part of the EPA's 
     analysis deprived its rule of the substantial evidence 
     required to survive judicial scrutiny, as in Aqua Slide.
       [16] We reach this conclusion despite the relatively 
     lenient standard by which we judge administrative rulemaking 
     proceedings. E.g., Superior Oil Co., 563 F.2d at 201. The EPA 
     seeks to avert this result by contending that the petitioners 
     had constructive notice that the EPA might adopt the 
     analogous exposure theory because it included, among its 
     published data, certain information that might be manipulated 
     to support such an analysis. We hold, however, that 
     considering that for some products the analogous exposure 
     estimates constituted the bulk of the EPA's analysis, 
     constructive notice was insufficient notice.\11\ In summary, 
     on an issue of this import, the EPA should have announced
      during the years in which the hearings were ongoing, rather 
     than in the subsequent weeks after which they were closed, 
     that it intended to use the analogous exposure estimates. 
     On reconsideration, the EPA should open to public comment 
     the validity of its analogous exposure estimates and 
     methodology.

                                   IV

                          The Language of TSCA


                                   A

                           Standard of Review

       Our inquiry into the legitimacy of the EPA rulemaking 
     begins with a discussion of the standard of review governing 
     this case. EPA's phase-out ban of most commercial uses of 
     asbestos is a TSCA Sec. 6(a) rulemaking. TSCA provides that a 
     reviewing court ``shall hold unlawful and set aside'' a final 
     rule promulgated under Sec. 6(a) ``if the court finds that 
     the rule is not supported by substantial evidence in the 
     rulemaking record . . . taken as a whole.'' 15 U.S.C. 
     Sec. 2618(c)(1)(B)(i).
       [17] Substantial evidence requires ``something less than 
     the weight of the evidence, and the possibility of drawing 
     two inconsistent conclusions from the evidence does not 
     prevent an administrative agency's finding from being 
     supported by substantial evidence.'' Consolo v. Federal 
     Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 
     L.Ed.2d 131 (1966). This standard requires (1) that the 
     agency's decision be based upon the entire record,\12\ taking 
     into account whatever in the record detracts from the weight 
     of the agency's decision; and (2) that the agency's decision 
     be what `` `a reasonable mind might accept as adequate to 
     support [its] conclusion.' '' American Textile Mfrs. Inst. v. 
     Donovan, 452 U.S. 490, 522, 101 S.Ct. 2478, 2497, 69 L.Ed.2d 
     185 (1981) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 
     474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)). Thus, even 
     if there is enough evidence in the record to support the 
     petitioners; assertions, we will not reverse if there is 
     substantial evidence to support the agency's decision. See, 
     e.g., Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 
     1990); Singletary v. Bowen, 798 F.2d 818, 822-23 (5th 
     Cir.1986); accord Fort Valley State College v. Bennett, 853 
     F.2d 862, 864 (11th Cir. 1988) (reviewing court examines the 
     entire record but defers to the agency's choice between two 
     conflicting views).
       [18, 19] Contrary to the EPA's assertions, the arbitrary 
     and capricious standard found in the APA and the substantial 
     evidence standard found in TSCA are different standards, even 
     in the context of an informal rulemaking.\13\ Congress 
     specifically went out of its way to provide that ``the 
     standard of review prescribed by paragraph (2)(E) of section 
     706 [of the APA] shall not apply and the court shall hold 
     unlawful and set aside such rule if the court finds that the 
     rule is not supported by substantial evidence in the 
     rulemaking record ... taken as a whole.'' 15 U.S.C. 
     Sec. 2618(c)(1)(B)(i). ``The substantial evidence standard 
     mandated by [TSCA] is generally considered to be more 
     rigorous than the arbitrary and capricious standard normally 
     applied to informal rulemaking,'' Environmental Defense Funds 
     v. EPA, 636 F.2d 1267, 1277 (D.C.Cir.1980), and ``afford[s] a 
     considerably more generous judicial review'' than the 
     arbitrary and capricious test. Abbott Laboratories v. 
     Gardner, 387 U.S. 136, 143, 87 S.Ct. 1507, 1512, 18 L.Ed.2d 
     681 (1967), overruled on other grounds, Califano v. Sanders, 
     430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The test 
     ``imposes a considerable burden on the agency and limits its 
     discretion in arriving at a factual predicate.'' Mobile Oil 
     Corp. v. FPC, 483 F.2d 1238, 1258 (D.C.Cir.1973).
       [20] ``Under the substantial evidence standard, a reviewing 
     court must give careful scrutiny to agency findings and, at 
     the same time, accord appropriate deference to administrative 
     decisions that are based on agency experience and 
     expertise.'' Environmental Defense Fund, 636 F.2d at 1277. As 
     with consumer product legislation, ``Congress put the 
     substantial evidence test in the statute because it wanted 
     the courts to scrutinize the Commission's actions more 
     closely than an `arbitrary and capricious' standard would 
     allow.'' Aqua Slide, 569 F.2d at 837.
       [21, 22] The recent case of Chemical Mfrs. Ass'n v. EPA, 
     899 F.2d 344 (5thCir.1990), provides our basic framework for 
     reviewing the EPA's actions. In evaluating whether the EPA 
     has presented substantial evidence, we examine (1) whether 
     the quantities of the regulated chemical entering into the 
     environment are ``substantial'' and (2) whether human 
     exposure
      to the chemical is ``substantial'' or ``significant.'' Id. 
     at 359. An agency may exercise its judgment without 
     strictly relying upon quantifiable risks, costs, and 
     benefits, but it must ``cogently explain why it has 
     exercised its discretion in a given manner'' and ``must 
     offer a `rational connection between the facts found and 
     the choice made.' '' Id. (quoting Motor Vehicle Mfrs. 
     Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 103 
     S.Ct. 2856, 77 L.Ed.2d 443 (1983)).
       [23,24] We note that in undertaking our review, we give all 
     agency rules a presumption of validity, and it is up to the 
     challenger to any rule to show that the agency action is 
     invalid. Alabama Nursing Home Ass'n v. Harris, 617 F.2d 388, 
     393-94 (5th Cir. 1980). The burden remains on the EPA, 
     however, to justify that the products it bans present an 
     unreasonable risk, no matter how regulated. See Industrial 
     Union Dep't v. American Petroleum Inst., 448 U.S. 607, 662, 
     100 S.Ct. 2844, 2874, 65 L.Ed.2d 1010 (1980); cf. National 
     Lime Ass'n v. EPA, 627 F.2d 416, 433 (D.C.Cir. 1980) (``an 
     initial burden of promulgating and explaining a non-
     arbitrary, non-capricious rule rests with the Agency''). 
     Finally, as we discuss in detail infra, because TSCA 
     instructs the EPA to undertake the least burdensome 
     regulation sufficient to regulate the substance at issue, the 
     agency bears a heavier burden when it seeks a partial or 
     total ban of a substance than when it merely seeks to 
     regulate that product. See 15 U.S.C. Sec. 2605(a).


                                   B

                      The EPA's Burden Under TSCA

       TSCA provides, in pertinent part, as follows:
       (a) Scope of regulation.--If the Administrator finds that 
     there is a reasonable basis to 

[[Page S 10201]]
     conclude that the manufacture, processing, distribution in commerce, 
     use, or disposal of a chemical substance or mixture, or that 
     any combination of such activities, presents or will present 
     an unreasonable risk of injury to health or the environment, 
     the Administrator shall by rule apply one or more of the 
     following requirements to such substance or mixture to the 
     extent necessary to protect adequately against such risk
      using the least burdensome requirements. Id. (emphasis 
     added). As the highlighted language shows, Congress did 
     not enact TSCA as a zero-risk statute.\14\ The EPA, 
     rather, was required to consider both alternatives to a 
     ban and the costs of any proposed actions and to ``carry 
     out this chapter in a reasonable and prudent manner [after 
     considering] the environmental, economic and social impact 
     of any action.'' 15 U.S.C. Sec. 2601(c).
       [25] We conclude that the EPA has presented insufficient 
     evidence to justify its asbestos ban. We base this conclusion 
     upon two grounds: the failure of the EPA to consider all 
     necessary evidence and its failure to give adequate weight to 
     statutory language requiring it to promulgate the least 
     burdensome, reasonable regulation required to protect the 
     environment adequately. Because the EPA failed to address 
     these concerns, and because the EPA is required to articulate 
     a ``reasoned basis'' for its rules, we are compelled to 
     return the regulation to the agency for reconsideration.
       1. Least Burdensome and Reasonable.
       [26] TSCA requires that the EPA use the least burdensome 
     regulation to achieve its goal of minimum reasonable risk. 
     This statutory requirement can create problems in evaluating 
     just what is a ``reasonable risk.'' Congress's rejection of a 
     no-risk policy, however, also means that in certain cases, 
     the least burdensome yet still adequate solution may entail 
     somewhat more risk than would other, known regulations that 
     are far more burdensome on the industry and the economy. The 
     very language of TSCA requires that the EPA once it has 
     determined what an acceptable level of non-zero risk is, 
     chose the least burdensome method of reaching that level.
       In this case, the EPA banned, for all practical purposes, 
     all present and future use of asbestos--a position the 
     petitioners characterize as the ``death penalty 
     alternative,'' as this is the most burdensome of all possible 
     alternatives listed as open to the EPA under TSCA. TSCA not 
     only provides the EPA with a list of alternative actions but 
     also provides those alternatives in order of how burdensome 
     they are.\15\ The
      regulations thus provide for EPA regulation ranging from 
     labeling the least toxic chemicals an industry may use. 
     Total bans head the list as the most burdensome regulatory 
     option.
       By choosing the harshest remedy given to it under TSCA, the 
     EPA assigned to itself the toughest burden in satisfying 
     TSCA's requirement that its alternative be the least 
     burdensome of all those offered to it. Since, both by 
     definition and by the terms of TSCA, the complete ban of 
     manufacturing is the most burdensome alternative--for even 
     stringent regulation at least allows a manufacturer the 
     chance to invest and meet the new, higher standard--the EPA's 
     regulation cannot stand if there is any other regulation that 
     would achieve an acceptable level of risk as mandated by 
     TSCA.
       We reserve until a later part of the opinion a product-by-
     product review of the regulation. Before reaching this 
     analysis, however, we lay down the inquiry that the EPA 
     should undertake whenever it seeks total ban of a product.
       The EPA considered, and rejected, such options as labeling 
     asbestos products, thereby warning users and workers involved 
     in the manufacture of asbestos-containing products of the 
     chemical's dangers, and stricter workplace rules. EPA also 
     rejected controlled use of asbestos in the workplace and 
     deferral to other government agencies charged with worker and 
     consumer exposure to industrial and product hazards, such as 
     OSHA, the CPSC, and the MSHA. The EPA determined that 
     deferral to these other agencies was inappropriate because no 
     one other authority could address all the risks posed 
     ``throughout the life cycle'' by asbestos, and any action by 
     one or more of the other agencies still would leave an 
     unacceptable residual risk.\16\
       Much of the EPA's analysis is correct, and the EPA's basic 
     decision to use TSCA as a comprehensive statute designed to 
     fight a multi-industry problem was a proper one that we 
     uphold today on review. What concerns us, however, is the 
     manner in which the EPA conducted some of its analysis. TSCA 
     requires the EPA to consider, along with the effects of toxic 
     substances on human health and the environment, ``the 
     benefits of such substance[s] or mixture[s] for various uses 
     and the availability of substitutes for such uses,'' as well 
     as ``the reasonably ascertainable economic consequences of 
     the rule, after consideration for the effect on the national 
     economy, small business, technological innovation, the 
     environment, and public health.'' Id. Sec. 2605(c)(1)(C-D).
       The EPA presented two comparisons in the record: a world 
     with no further regulation under TSCA, and a world in which 
     no manufacture of asbestos takes place. The EPA rejected 
     calculating how many lives a less burdensome regulation would 
     save, and at what cost. Furthermore the EPA, when calculating 
     the benefits of its ban, explicitly refused to compare it to 
     an improved workplace in which currently available control 
     technology is utilized. See 54 Fed.Reg. at 29,474. This 
     decision artificially inflated the purported benefits of the 
     rule by using a baseline comparison substantially lower than 
     what currently available technology could yield.
       [27] Under TSCA, the EPA was required to evaluate, rather 
     than ignore, less burdensome regulatory alternatives. TSCA 
     imposes a least-to-most-burdensome hierarchy. In order to 
     impose a regulation at the top of the hierarchy--a total ban 
     of asbestos--the EPA must show not only that its proposed 
     action reduces the risk of the product to an adequate level, 
     but also that the actions Congress identified as less 
     burdensome also would not do the job.\17\ The failure of the 
     EPA to do this constitutes a failure to meet its burden of 
     showing that its actions not only reduce the risk but do so 
     in the Congressionally-mandated least burdensome fashion.
       Thus it was not enough for the EPA to show, as it did in 
     this case, that banning some asbestos products might reduce 
     the harm that could occur from the use of these products. If 
     that were the standard, it would be no standard at all, for 
     few indeed are the products that are so safe that a complete 
     ban of them would not make the world still safer.
       This comparison of two static worlds is insufficient to 
     satisfy the dictates of TSCA. While the EPA may have shown 
     that a world with a complete ban of asbestos might be 
     preferable to one in which there is only the current amount 
     of regulation, the EPA has failed to show that there is not 
     some intermediate state of regulation that would be superior 
     to both the currently-regulated and the completely-banned 
     world. Without showing that asbestos regulation would be 
     ineffective, the EPA cannot discharge its TSCA burden of 
     showing that its regulation is the least burdensome available 
     to it.
       Upon an initial showing of product danger, the proper 
     course for the EPA to follow is to consider each regulatory 
     option, beginning with the least burdensome, and the costs 
     and benefits of regulation under each option. The EPA cannot 
     simply skip several rungs, as it did in this case, for in 
     doing so, it may skip a less-burdensome alternative mandated 
     by TSCA. Here, although the EPA mentions the problems posed 
     by intermediate levels of regulation, it takes no steps to 
     calculate the costs and benefits of these intermediate 
     levels. See 54 Fed.Reg. at 29,462, 29,474. Without doing this 
     it is impossible, both for the EPA and for this court on 
     review, to know that none of these alternatives was less 
     burdensome than the ban in fact chosen by the agency.
       The EPA's offhand rejection of these intermediate 
     regulatory steps is ``not the stuff of which substantial 
     evidence is made.'' Aqua Slide, 569 F.2d at 843. While it is 
     true that the EPA considered five different ban options, 
     these differed solely with respect to their effective dates. 
     The EPA did not calculate the risk levels for intermediate 
     levels of regulation, as it believed that there was no 
     asbestos exposure level for which the risk of injury or death 
     was zero. Reducing risk to zero, however, was not the task 
     that Congress set for the EPA in enacting TSCA. The EPA thus 
     has failed ``cogently [to] explain why it has exercised its 
     discretion in a given manner,'' Chemical Mfrs. Ass'n, 899 
     F.2d at 349, by failing to explore in more than a cursory way 
     the less burdensome alternatives to a total ban.
       2. The EPA's Calculations.
       Furthmore, we are concerned about some of the methodology 
     employed by the EPA in making various of the calculations 
     that it did perform. In order to aid the EPA's 
     reconsideration of this and other cases, we present our 
     concerns here.
       [28] First, we note that there was some dispute in the 
     record regarding the appropriateness of discounting the 
     perceived benefits of the EPA's rule. In choosing between the 
     calculated costs and benefits, the EPA presented variations 
     in which it discounted only the costs, and counter-variations 
     in which it discounted about the costs and the benefits, 
     measured in both monetary and human injury terms. As between 
     these two variations, we choose to evaluate the EPA's work 
     using its discounted benefits calculations.
       Although various commentators dispute whether it ever is 
     appropriate to discount benefits when they are measured in 
     human lives, we note that it would skew the results to 
     discount only costs without according similar treatment to 
     the benefits side of the equation. Adopting the position of 
     the commentators who advocate not discounting benefits would 
     force the EPA similarly not to calculate costs in present 
     discounted real terms, making comparisons difficult. 
     Furthermore, in evaluating situations in which different 
     options incur costs at varying time intervals, the EPA would 
     not be able to take into account that soon-to-be incurred 
     costs are more harmful than postponable costs. Because the 
     EPA must discount costs to perform its evaluations properly, 
     the EPA also should discount benefits to preserve an apples-
     to-apples comparison, even if this entails discounting 
     benefits of a non-monetary nature. See What Price Posterity?, 
     The Economist, March 23, 1991, at 73 (explaining use of 
     discount rates for non-monetary goods).
       When the EPA does discount costs of benefits, however, it 
     cannot choose an unreasonable time upon which to base its 
     discount calculation. Instead of using the time of injury as 
     the appropriate time from which to discount, as one might 
     expect, the EPA instead used the time of exposure.

[[Page S 10202]]

       The difficulties inherent in the EPA's approach can be 
     illustrated by an example. Suppose two workers will be 
     exposed to asbestos in 1995, with worker X subjected to a 
     tiny amount of asbestos that will have no adverse health 
     effects, and worker Y exposed to massive amounts of asbestos 
     that quickly will lead to an asbestos-related disease. Under 
     the EPA's approach, which takes into account only the time of 
     exposure rather than the time at which any injury manifests 
     itself, both examples would be treated the same. The EPA's 
     approach implicitly assumes that the day on which the risk of 
     injury occurs is the same day the injury actually occurs.\18\ 
     Such an approach might be proper when the exposure and injury 
     are one and the same, such as when a person is exposed to an 
     immediately fatal poison, but is inappropiate for discounting 
     toxins in which exposure often is followed by a substantial 
     lag time before manifestation of injuries.\19\
       Of more concern to us is the failure of the EPA to compute 
     the costs and benefits of its proposed rule past the year 
     2000, and its double-counting of the costs of asbestos use. 
     In performing its calculus, the EPA only included the number 
     of lives saved over the next thirteen years, and counted any 
     additional lives saved as simply ``unquantified benefits.'' 
     54 Fed. Reg. at 29,486. The EPA and intervenors now seek to 
     use these unquantified lives saved to justify calculations as 
     to which the benefits seem far outweighed by the astronomical 
     costs. For example, the EPA plans to save about three lives 
     with its ban of asbestos pipe, at a cost of $128-227 million 
     (i.e., approximately $43-76 million per life saved). Although 
     the EPA admits that the lives saved past the year 2000 
     justify the price. See generally id. at 29,473 (explaining 
     use of unquantified benefits).
       Such calculations not only lessen the value of the EPA's 
     cost analysis, but also make any meaningful judicial review 
     impossible. While TSCA contemplates a useful place for 
     unquantified benefits beyond the EPA's calculation, 
     unquantified benefits never were intended as a trump card 
     allowing the EPA to justify any cost calculus, no matter how 
     high.
       The concept of unquantified benefits, rather, is intended 
     to allow the EPA to provide a rightful place for any 
     remaining benefits that are impossible to quantify after the 
     EPA's best attempt, but which still are of some concern. But 
     the allowance for unquantified costs is not intended to allow 
     the EPA to perform its calculations over an arbitrarily short 
     period so as to preserve a large unquantified portion.
       Unquantified benefits can, at times, permissibly tip the 
     balance in close cases. They cannot, however, be used to 
     effect a wholesale shift on the balance beam. Such a use 
     makes a mockery of the requirements of TSCA that the EPA 
     weigh the costs of its actions before it chooses the least 
     burdensome alternative.\20\
       [29] Most problematical to us is the EPA's ban of products 
     for which no substitutes presently are available. In these 
     cases, the EPA bears a tough burden indeed to show that under 
     TSCA a ban is the least burdensome alternative, as TSCA 
     explicitly instructs the EPA to consider ``the benefits of 
     such substance or mixture for various uses and the 
     availability of substitutes for such uses.'' Id. 
     Sec. 2605(c)(1)(C). These words are particularly appropriate 
     where the EPA actually has decided to ban a product, rather 
     than simply restrict is use, for it is in these cases that 
     the lack of an adequate substitute is most troubling under 
     TSCA.
       As the EPA itself states, ``[w]hen no information is 
     available for a product indicating that cost-effective 
     substitutes exist, the estimated cost of a product ban is 
     very high.'' 54 Fed.Reg. at 29,468. Because of this, the EPA 
     did not ban certain uses of asbestos, such as its use in 
     rocket engines and battery separators. The EPA, however, in 
     several other instances, ignores its own arguments and 
     attempts to justify its ban by stating that the ban itself 
     will cause the development of low-cost, adequate substitute 
     products.
       [30] As a general matter, we agree with the EPA that a 
     product ban can lead to great innovation, and it is true that 
     an agency under TSCA, as under other regulatory statutes, 
     ``is empowered to issue safety standards which require 
     improvements in existing technology or which require the 
     development of new technology.'' Chrysler Corp. v. Department 
     of Transp., 472 F.2d 659, 673 (6th Cit.1972). As even the EPA 
     acknowledges, however, when no adequate substitutes currently 
     exist, the EPA cannot fail to consider this lack when 
     formulating its own guidelines. Under TSCA, therefore, the 
     EPA must present a stronger case to justify the ban, as 
     opposed to regulation, of products with no substitutes.
       We note that the EPA does provide a waiver provision for 
     industries where the hoped-for substitutes fail to 
     materialize in time. See 54 Fed. Reg. at 29,464. Under this 
     provision, if no adequate substitutes develop, the EPA 
     temporarily may extend the planned phase-out.
       The EPA uses this provision to argue that it can ban any 
     product, regardless of whether it has an adequate substitute, 
     because inventive companies soon will develop good 
     substitutes. The EPA contends that if they do not, the waiver 
     provision will allow the continued use of asbestos in these 
     areas, just as if the ban had not occurred at all.
       The EPA errs, however, in asserting that the waiver 
     provision will allow a continuation of the status quo in 
     those cases in which no substitutes materialize. By its own 
     terms, the exemption shifts the burden onto the waiver 
     proponent to convince the EPA that the waiver is justified. 
     See id. As even the EPA acknowledges, the wavier only ``may 
     be granted by [the] EPA in very limited circumstances.'' Id. 
     at 29,460.
       The EPA thus cannot use the waiver provision to lessen its 
     burden when justifying banning products without existing 
     substitutes. While TSCA gives the EPA the power to ban such 
     products, the EPA must bear its heavier burden of justifying 
     its total ban in the face of inadequate substitutes. Thus, 
     the agency cannot use its waiver provision to argue that the 
     ban of products with no substitutes should be treated the 
     same as the ban of those for which adequate substitutes are 
     available now.
       [31] We also are concerned with the EPA's evaluation of 
     substitutes even in those instances in which the record shows 
     that they are available. The EPA explicitly rejects 
     considering the harm that may flow from the increased use of 
     products designed to substitute for asbestos, even where the 
     probable substitutes themselves are known carcinogens. Id. at 
     29,481-83. The EPA justifies this by stating that it has 
     ``more concern about the continued use and exposure to 
     asbestos than it has for the future replacement of asbestos 
     in the products subject to this rule with other fibrous 
     substitutes.'' Id. at 29,481. The agency thus concludes that 
     any ``[r]egulatory decisions about asbestos which poses well-
     recognized, serious risks should not be delayed until the 
     risk of all replacement materials are fully quantified.'' Id. 
     at 29,483.
       This presents two problems. First, TSCA instructs the EPA 
     to consider the relative merits of its ban, as compared to 
     the economic effects of its actions. The EPA cannot make this 
     calculation if it fails to consider the effects that 
     alternate substitutes will pose after a ban.
       Second, the EPA cannot say with any assurance that its 
     regulation will increase workplace safety when it refuses to 
     evaluate the harm that will result from the increased use of 
     substitute products. While the EPA may be correct in its 
     conclusion that the alternate materials pose less risk than 
     asbestos, we cannot say with any more assurance than that 
     flowing from an educated guess that this conclusion is true.
       Considering that many of the substitutes that the EPA 
     itself concedes will be used in the place of asbestos have 
     known carcinogenic effects, the EPA not only cannot assure 
     this court that it has taken the least burdensome 
     alternative, but cannot even prove that its regulations will 
     increase workplace safety. Eager to douse the dangers of 
     asbestos, the agency inadvertently actually may increase the 
     risk of injury Americans face. The EPA's explicit failure to 
     consider the toxicity of likely substitutes thus deprives its 
     order of a reasonable basis. Cf. American Petroleum Inst. v. 
     OSHA, 581 F. 2d 493, 504 (5th Cir. 1978) (An agency is 
     required to ``regulate on the basis of knowledge rather than 
     the unknown.'').
       Our opinion should not be construed to state that the EPA 
     has an affirmative duty to seek out and test every workplace 
     substitute for any product it seeks to regulate. TSCA does 
     not place such a burden upon the agency. We do not think it 
     unreasonable, however, once interested parties introduce 
     credible studies and evidence showing the toxicity of 
     workplace substitutes, or the decreased effectiveness of 
     safety alternatives such as non-asbestos brakes, that the EPA 
     then consider whether its regulations are even increasing 
     workplace safety, and whether the increased risk occasioned 
     by dangerous substitutes makes the proposed regulation no 
     longer reasonable. In the words of the EPA's own release that 
     initiated the asbestos rulemaking, we direct that the agency 
     consider the adverse health effects of asbestos substitute 
     ``for comparison with the known hazards of asbestos,'' so 
     that it can conduct, as it promised in 1979, a ``balanced 
     consideration of the environmental, economic, and social 
     impact of any action taken by the agency.'' 44 Fed. Reg. at 
     60,065 (1979).
       [32] In short, a death is a death, whether occasioned by 
     asbestos or by a toxic substitute product, and the EPA's 
     decision not to evaluate the toxicity of known carcinogenic 
     substitutes is not a reasonable action under TSCA. Once an 
     interested party brings forth credible evidence suggesting 
     the toxicity of the probable or only alternatives to a 
     substance, the EPA must consider the comparative toxic costs 
     of each.\21\ Its failure to do so in this case thus
      deprived its regulation of a reasonable basis, at least in 
     regard to those products as to which petitioners 
     introduced credible evidence of the dangers of the likely 
     substitutes.\22\
       4. Unreasonable Risk of Injury.
       The final requirement the EPA must satisfy before engaging 
     in any TSCA rulemaking is that it only take steps designed to 
     prevent ``unreasonable'' risks. In evaluating what is 
     ``unreasonable,'' the EPA is required to consider the costs 
     of any proposed actions and to ``carry out this chapter in a 
     reasonable and prudent manner [after considering] the 
     environmental, economic, and social impact of any action.'' 
     15 U.S.C. Sec. 2601(c).
       [33] As the District of Columbia Circuit stated when 
     evaluating similar language governing the Federal Hazardous 
     Substances Act, ``[t]he requirement that the risk be 
     `unreasonable' necessarily involves a balancing test like 
     that familiar in tort law: The regulation may issue if the 
     severity of the injury 

[[Page S 10203]]
     that may result from the product, factored by the likelihood of the 
     injury, offsets the harm the regulation itself imposes upon 
     manufacturers and consumers,'' Forester v. CPSC, 559 F.2d 
     774, 789 (D.C.Cir. 1977). We have quoted this language 
     approvingly when evaluating other statutes using similar 
     language. See, e.g., Aqua Slide, 569 F.2d at 839.
       That the EPA must balance the costs of its regulations 
     against their benefits further is reinforced by the 
     requirement that it seek the least burdensome regulation. 
     While Congress did not dictate that the EPA engage in an 
     exhaustive, full-scale cost-benefit analysis, it did require 
     the EPA to consider both sides of the regulatory equation, 
     and it rejected the notion that the EPA should pursue the 
     reduction of workplace risk at any cost. See American Textile 
     Mfrs. Inst., 452 U.S. at 510 n. 30, 101 S.Ct. at 2491 n. 30 
     (``unreasonable risk'' statutes require ``a generalized 
     balancing of costs and benefits'' (citing Aqua Slide, 569 
     F.2d at 839)). Thus, ``Congress also plainly intended the EPA 
     to consider the economic impact of any actions taken by it 
     under . . . TSCA.'' Chemical Mfrs. Ass'n 899 F.2d at 348.
       Even taking all of the EPA's figures as true, and 
     evaluating them in the light most favorable to the agency's 
     decision (non-discounted benefits, discounted costs, 
     analogous exposure estimates included), the agency's analysis 
     results in figures as high as $74 million per life saved. For 
     example, the EPA states that its ban of asbestos pipe will 
     save three lives over the next thirteen years, at a cost of 
     $128-227 million ($43-76 million per life saved), depending 
     upon the price of substitutes; that it ban of asbestos 
     shingles will cost $23-34 million to save 0.32 statistical 
     lives ($72-106 million per life saved); that its ban of 
     asbestos coatings will cost $46-181 million to save 3.33 
     lives ($14-54 million per life saved); and that its ban of 
     asbestos paper products will save 0.60 lives at a cost of $4-
     5 million ($7-8 million per life saved). See Fed. Reg. at 
     29,484-85. Were the analogous exposure estimates not 
     included, the cancer risks from substitutes such as ductile 
     iron pipe factored in, and the benefits of the ban 
     appropriately discounted from the time of the manifestation 
     of an injury rather than the time of exposure, the costs 
     would shift even more sharply against the EPA's position.
       While we do not sit as a regulatory agency that must make 
     the difficult decision as to what an appropriate expenditure 
     is to prevent someone from incurring the risk of an asbestos-
     related death, we do note that the EPA, in its zeal to ban 
     any and all asbestos products, basically ignored the cost 
     side of the TSCA equation. The EPA would have this court 
     believe that Congress, when it enacted its requirement that 
     the EPA consider the economic impacts of its regulations, 
     thought that spending $200-300 million to save approximately 
     seven lives (approximately $30-40 million per life) over 
     thirteen years is reasonable.
       As we stated in the OSHA context, until an agency ``can 
     provide substantial evidence that the benefits to be achieved 
     by [a regulation] bear a reasonable relationship to the costs 
     imposed by the reduction, it cannot show that the standard is 
     reasonably necessary to provide safe or healthful 
     workplaces.'' American Petroleum Inst., 581 F.2d at 504. 
     Although the OSHA statute differs in major respects from 
     TSCA, the statute does require substantial evidence to 
     support the EPA's contentions that its regulations both have 
     a reasonable basis and are the least burdensome means to a 
     reasonably safe workplace.
       The EPA's willingness to argue that spending $23.7 million 
     to save less than one-third of a life reveals that its 
     economic review of its regulations, as required by TSCA, was 
     meaningless. As the petitioners' brief and our review of EPA 
     caselaw reveals, such high costs are rarely, if ever, used to 
     support a safety regulation. If we were to allow such 
     cavalier treatment of the EPA's duty to consider the economic 
     effects of its decisions, we would have to excise entire 
     sections and phrases from the language of TSCA. Because we 
     are judges, not surgeons, we decline to do so.\23\

                                   V

  Substantial Evidence Regarding Least Burdensome, Adequate Regulation

       TSCA provides that a reviewing court ``shall hold unlawful 
     and set aside'' a final rule promulgated under section 6(a) 
     ``if the court finds that the rule is not supported by 
     substantial evidence in the rulemaking record . . . taken as 
     a whole.'' 15 U.S.C. Sec. 2618(c)(1)(B)(i). The substantial 
     evidence standard ``afford[s] a considerably more generous 
     judicial review'' than the arbitrary or capricious test, 
     Abbott Laboratories, 387 U.S. at 143, 87 S.Ct. at 1513, and 
     ``imposes a considerable burden on the agency and limits its 
     discretion in arriving at a factual predicate.'' Mobil Oil 
     Corp. v. FPC, 483 F.2d 1238, 1258 (D.C.Cir.1973).
       [34] We have declared that the EPA must articulate an 
     ``understandable basis'' to support its TSCA action with 
     respect to each substance or application of the substance 
     banned. Chemical Mfrs. Ass'n, 899 F.2d at 357. To make a 
     finding of unreasonable risk based upon this assessment, the 
     ``EPA must balance the probability that harm will occur from 
     the activities against the effects of the proposed regulatory 
     action on the availability to society of the benefits of 
     asbestos.'' 54 Fed.Reg. at 29, 467. With these edicts in 
     mind, we now examine each product against the TSCA 
     criteria.\24\
                                   A

                           Friction Products

       [35] We begin our analysis with the EPA's ban of friction 
     products, which constitutes the lion's share of the proposed 
     benefits of the asbestos regulation--nearly three-fourths of 
     the anticipated asbestos deaths. The friction products in 
     question, although primarily made up of drum and disk brakes, 
     also include brake blocks and other friction products.
       Workers are exposed to asbestos during the manufacture, 
     use, repair, and disposal of these products. The EPA banned 
     most of these products with a stage 2 ban, which would 
     require companies to cease manufacturing or importing the 
     products by August 25, 1993, with distribution to end one 
     year later. The final stage 3 ban would ban any remaining 
     friction products on August 26, 1996, with distribution again 
     ceasing one year later. See id. at 29,461-62.
       We note that of all the asbestos bans, the EPA did the most 
     impressive job in this area, both in conducting its studies 
     and in supporting its contention that banning asbestos 
     products would save over 102 discounted lives. Id. at 29,485. 
     Furthermore, the EPA demonstrates that the population 
     exposure to asbestos in this area is great, while the 
     estimated cost of the measure is low, at least in comparison 
     to the cost-per-life of its other bans. Were the petitioners 
     only questioning the EPA's decision to ban friction products 
     based upon disputing these figures, we would be tempted to 
     uphold the EPA, even in the fact of petitioner's arguments 
     that workplace exposure to friction product asbestos could be 
     decreased by as much as ninety percent using stricter 
     workplace controls and in light of studies supporting the 
     conclusion that some forms of asbestos present less danger. 
     Decisions such as these are better left to the agency's 
     expertise.
       Such expertise, however, is not a universal talisman 
     affording the EPA unbridled latitude to act as it chooses 
     under TSCA. What we cannot ignore is that the EPA failed to 
     study the effect of non-asbestos brakes on automotive safety, 
     despite credible evidence that non-asbestos brakes could 
     increase significantly the number of highway fatalities, and 
     that the EPA failed to evaluate the toxicity of likely brake 
     substitutes. As we already mentioned, the EPA, in its zeal to 
     ban asbestos, cannot overlook, with only cursory study, 
     credible contentions that substitute products actually might 
     increase fatalities.
       The EPA commissioned an American Society of Mechanical 
     Engineers (ASME) study that concluded that while more 
     research was needed, it appeared that many of the proposed 
     substitutes for friction products are not, and will not soon 
     be available, especially in the replacement brake market, and 
     that the substitutes may or may not assure safety.\25\ 
     Despite this credible record evidence, by a study 
     specifically commissioned by the EPA, that substitute 
     products actually might cause more deaths than those asbestos 
     deaths predicted by the EPA, the agency did not evaluate the 
     dangers posed by the substitutes, including cancer deaths 
     from the others fibers used and highway deaths occasioned by 
     less effective, non-asbestos brakes. This failure to examine 
     the likely consequence of the EPA's regulation renders the 
     ban of asbestos friction products unreasonable.
       This failure would be of little moment, were the relevant 
     market confined to original equipment disk brakes and pads. 
     For these original equipment brakes, it appears that 
     manufacturers already have developed safe substitutes for 
     asbestos, considering that nearly all new vehicles come with 
     non-asbestos disk brakes, with non-asbestos drum brakes 
     apparently soon to follow. See id. at 29,493. The ASME Report 
     concluded that ``at the present rate of technological 
     progress, most new passenger cars could be equipped with 
     totally non-asbestos frictional systems by 1991, and most 
     light trucks and heavy trucks with S-cam brakes, by 1992.'' 
     See id. at 29,494.
       Although the petitioners dispute the evidence, we find 
     particularly telling the fact that manufacturers already are 
     producing most vehicles with newly designed, non-asbestos 
     brakes. The ban of asbestos brakes for these uses here 
     appears reasonable and, had the EPA taken the proper steps to 
     consider and reject the less burdensome alternatives, we 
     might find the ban of these products supported by substantial 
     evidence.
       With respect to the aftermarket replacement market, 
     however, the EPA's failure to consider the safety 
     ramifications of its decisions is problematic. Original 
     equipment, non-asbestos brakes are designed from the start to 
     work without the superior insulating properties of asbestos. 
     The replacement market brakes, on the other hand, were 
     designed with asbestos, rather than substitutes, in mind. As 
     the EPA itself states, ``[c]ommenters generally agreed that 
     it is easier to develop replace
      ment asbestos-free friction materials for use in vehicles 
     that are intentionally designed to use such materials that 
     it is to develop asbestos-free friction materials for use 
     as after-market replacement products in vehicles currently 
     in use that have brake systems designed to use asbestos.'' 
     Id. Because of these difficulties, the EPA decided to use 
     a stage 3 ban for replacement brakes.
       Despite acknowledging the difficulty of retrofitting 
     current asbestos brakes, however, the EPA decided that the 
     problem with non-asbestos brakes was not that they are 
     inferior, but that they are less safe because the government 
     does not regulate them. 

[[Page S 10204]]
     Based upon this conclusion, the EPA decided that is need not consider 
     the safety of alternative brakes because, after consultation 
     with the National Highway Traffic Safety Administration, 
     (NNTSA), the EPA concluded that regulation of non-asbestos 
     brakes soon would be forthcoming. Id.
       This determination is insufficient to discharge the EPA's 
     duties under TSCA. The EPA failed to settle whether 
     alternative brakes will be as safe as current brakes, even 
     though, by its own admission, the ``EPA also acknowledges 
     that a ban on asbestos in the brake friction product 
     categories may increase the uncertainty about brake 
     performance.'' Id. at 29,495. The EPA contends that it can 
     rely upon NHTSA to discharge its regulatory burdens, but it 
     ignores the fact that the problem with non-asbestos brakes 
     may be technical, rather than regulatory, in nature.
       Future consideration by the NHTSA cannot support a present 
     ban by the EPA when the record contains conflicting and non-
     conclusive evidence regarding the safety of non-asbestos 
     brake replacement parts. After being presented with credible 
     evidence ``that a ban on asbestos use in the aftermarket for 
     brake systems designed for asbestos friction products will 
     compromise the performance of braking systems designed for 
     asbestos brakes,'' id. at 29,494, the EPA under TSCA had to 
     consider whether its proposed ban not only was reasonable, 
     but also whether the increased deaths caused by less 
     efficient brakes made the ban of asbestos in the replacement 
     brake market unreasonable.
       In short, while it is apparent that non-asbestos brake 
     products either are available or soon will be available on 
     new vehicles, there is no evidence indicating that forcing 
     consumers to replace their asbestos brakes with new non-
     asbestos brakes as they wear out on their present vehicles 
     will decrease fatalities or that such a ban will produce 
     other benefits that outweigh its costs. Furthermore, many of 
     the EPA's own witnesses conceded on cross-examination that 
     the non-asbestos fibrous substitutes also pose a cancer risk 
     upon inhalation, yet the EPA failed to examine in more than a 
     cursory fashion the toxicity of these alternatives. Under 
     these circumstances, the EPA has failed to support its ban 
     with the substantial evidence needed to provide it with a 
     reasonable basis.
       Finally, as we already have noted, the structure of TSCA 
     requires the EPA to consider, and reject, the less burdensome 
     alternatives in the TSCA hierarchy before it can invoke its 
     power to ban a product completely. It may well be true, as 
     the EPA contends, that workplace controls are insufficient 
     measures under TSCA and that only a ban will discharge the 
     EPA's TSCA-imposed duty to seek the safest, reasonable 
     environment. The EPA's failure to consider the regulatory 
     alternatives, however, cannot be substantiated by conclusory 
     statements that regulation would be insufficient. See Texas 
     Indep. Ginners Ass'n v. Marshall, 630 F.2d 398, 411-12 (5th 
     Cir. 1980); Aqua Slide, 569 F.2d at 843. We thus concede that 
     while the EPA may have presented sufficient evidence to 
     underpin the dangers of asbestos brakes, its failure to 
     consider whether the ban is the least burdensome alternative, 
     and its refusal to consider the toxicity and danger of 
     substitute brake products, in regard to both highway and 
     workplace safety, deprived its regulation of the reasonable 
     basis required by TSCA.


                                   b

                     Asbestos-Cement Pipe Products

       [36]  The EPA's analysis supporting its ban of asbestos-
     cement (``A/C'') pipe is more troublesome than its action in 
     regard to friction products. Asbestos pipe primarily is used 
     to convey water in mains, sewage under pressure, and 
     materials in various industrial process lines. Unlike most 
     uses of asbestos, asbestos pipe is valued primarily for its 
     strength and resistance to corrosion, rather than for its 
     heat-resistant qualities. The EPA imposed a stage 3 ban on 
     asbestos pipe.  54 Fed. Reg. at 29,462.
       Petitioners question EPA's cost/benefit balancing, noting 
     that by the EPA's own predictions, the ban of asbestos pipe 
     will save only 3-4 discounted lives, at a cost ranging from 
     $128-227 million ($43-76 million per life saved), depending 
     upon the price of substitutes. Id. at 29,484. Furthermore, 
     much of EPA's data regarding this product and others depends 
     upon data received from exposures observed during activities 
     similar to the ones to be regulated--the ``analogous 
     exposure'' analysis that the EPA adopted subsequent to the 
     public comment period, which thus was not subjected to cross-
     examination or other critical testing.\26\ Finally, the 
     petitioners protest that the EPA acted unreasonably because 
     the most likely substitutes for the asbestos pipe, PVC and 
     ductile iron pipe, also contain known carcinogens.
       Once again we are troubled by the EPA's methodology and its 
     evaluation of the substitute products. Many of the objections 
     raised by the asbestos cement pipe producers are general 
     protests about the EPA's studies and other similar 
     complaints. We will not disturb such agency inquiries, as it 
     is not our role to delve into matters better left for agency 
     expertise. We do, however, examine the EPA's methodology in 
     places to determine whether it has presented substantial 
     evidence to support its regulation.
       As with friction products, the EPA refused to assess the 
     risks of substitutes to asbestos pipe. Id. at 29,497-98. 
     Unlike non-asbestos brakes, which the EPA contends are safe, 
     the EPA here admits that vinyl chloride, used in PVC, is a 
     human carcinogen that is especially potent during the 
     manufacture of PVC pipe. As for the EPA's defense of the 
     ductile iron pipe substitute, the EPA also acknowledges 
     evidence that it will cause cancer deaths but rejects these 
     deaths as overestimated, even though it can present no more 
     support for this assumption than its own ipse dixit.
       The EPA presented several plausible, albeit untested, 
     reasons why PVC and ductile iron pipe might be less of a 
     health risk than asbestos pipe. It did not, however, actually 
     evaluate the health risk flowing from these substitute 
     products, even though the
      ``EPA acknowledges that the individual lifetime cancer risk 
     associated with the production of PVC may be equivalent to 
     that associated with the production of A/C pipe.'' Id. at 
     29,497. The agency concedes that ``[t]he population cancer 
     risk for the production of ductile iron pipe could be 
     comparable to the population cancer risk for production of 
     A/C pipe.'' Id.
       It was insufficient for the EPA to conclude that while its 
     data showed that ``the number of cancer cases associated with 
     production of equivalent amounts of ductile iron pipe and A/C 
     pipe `may be similar,' the estimate of cancer risk for 
     ductile iron pipe `is most likely an overestimate,' '' see 54 
     Fed.Reg. at 29,498, unless the agency can present something 
     more concrete than its own speculation to refute these 
     earlier iron pipe cancer studies. Musings and conjecture are 
     ``not the stuff of which substantial evidence is made,'' Aqua 
     Slide, 569 F.2d at 843, and ``[u]narticulated reliance on 
     Commission `experience' may satisfy an `arbitrary, 
     capricious' standard of review, but it does not add one jot 
     to the record evidence.'' Id. at 841-42 (citations omitted). 
     ``While expert opinion deserves to be heeded, it must be 
     based on more than casual observation and speculation, 
     particularly where a risk of fatal injury is being 
     evaluated.'' Id. These concerns are of special note where the 
     increased carcinogen risk occasioned by the EPA's proposed 
     substitutes is both credible and known.
       This conclusion only is strengthened when we consider the 
     EPA's failure to analyze the health risks of PVC pipe, the 
     most likely substitute for asbestos pipe, which the EPA 
     concedes poses a cancer risk similar to that presented by 
     asbestos pipe. The failure of the EPA to make a record 
     finding on the risks of PVC pipe is particularly 
     inexplicable, as the EPA already is studying increasing the 
     stringency of PVC regulation in separate rulemaking 
     proceedings, an action that one of the very intervenors in 
     the instant case has been urging for years. See NRDC v. EPA, 
     824 F.2d 1146, 1148-49 (D.C.Cir.1987) (en banc).
       The EPA, in these separate proceedings, has estimated the 
     cancer risk from PVC
      plants to be as high as twenty deaths per year, a death rate 
     that stringent controls might be able to reduce to one per 
     year, see id. at 1149, far in excess of the fractions of a 
     life that the asbestos pipe ban may save each year, by the 
     EPA's own calculations. Considering that the EPA concedes 
     that there is no evidence showing that ingested, as 
     opposed to inhaled, asbestos is a health risk, while the 
     EPA's own studies show that ingested vinyl chloride is a 
     significant cancer risk that could cause up to 260 cancer 
     deaths over the next thirteen years, see id.; 54 Fed.Reg. 
     at 29, 498, the EPA's failure to consider the risks of 
     substitute products in the asbestos pipe area is 
     particularly troublesome. The agency cannot simply choose 
     to note the similar cancer risks of asbestos and iron pipe 
     and then reject the data underpinning the iron and PVC 
     pipe without more than its own conclusory statements.
       We also express concern with the EPA's cavalier attitude 
     toward the use of its own data. The asbestos pipe industry 
     argues that the exposure times the EPA used to calculate its 
     figures are much higher than experience would warrant, a 
     contention that the EPA now basically concedes. Rather than 
     recalculate its figures, however, based upon the best data 
     available to it, the EPA merely responds that while the one 
     figure may be too high, it undoubtedly underestimated the 
     exposure levels, because contractors seldom comply with OSHA 
     regulations. In the words of its brief, ``[t]hus, EPA 
     concluded that its estimates contain both over and 
     underestimates, but nevertheless represented a reasonable 
     picture of aggregate exposure.''
       The EPA is required to support its analysis with 
     substantial evidence under TSCA. When one figure is 
     challenged, it cannot back up its position by changing an 
     unrelated figure to yield the same result. Allowing such 
     behavior would require us only to focus on the final numbers 
     provided by an agency, and to ignore how it arrives at that 
     number. Because a conclusion is no better than the 
     methodology used to reach it, such a result cannot survive 
     the substantial evidence test.
       Finally, we once again note that the EPA failed to 
     discharge its TSCA-mandated burden that it consider and 
     reject less burdensome alternatives before it impose a more 
     burdensome alternative such as a complete ban. The EPA 
     instead jumped immediately to the ban provision, without 
     calculating whether a less burdensome alternative might 
     accomplish TSCA's goals. See 54 Fed. Reg. at 29,489. We 
     therefore conclude that the EPA failed to present substantial 
     evidence to support its ban of asbestos pipe.


                                   c

             Gaskets, Roofing, Shingles, and Paper Products

       We here deal with the remaining products affected by the 
     EPA ban. Petitioners challenge the basis for the EPA's 
     finding that 

[[Page S 10205]]
     beater-add and sheet gaskets, primarily used in automotive parts, 
     should be banned. The agency estimated its ban would save 
     thirty-two lives over a thirteen-year time span, at an 
     overall cost of $207-263 million ($6-8 million per life 
     saved). Id. at 29,484.
       We have little to add in this area, beyond our general 
     discussion and comments on other products apart from a brief 
     highlight of the EPA's use of analogous exposure data to 
     support its gasket ban. For these products, the analogous 
     exposure estimate constituted almost eighty percent of the 
     anticipated total benefits--a proportion so large that the 
     EPA's duty to give interested parties notice that it intended 
     to use analogous exposure estimate was particularly 
     acute.\27\ Considering some of the EPA's support for its 
     analogous exposure estimates--such as its assumption that 
     none of the same workers who install beater-add and sheet 
     gaskets ever is involved in repairing or disposing of them, 
     and the unexplained discrepancy between its present 
     conclusion that over 50,000 workers are involved in this area 
     and its 1984 estimate that only 768 workers are in
      volved in ``gasket removal and installation,'' see 51 
     Fed.Reg. 22,612, 22,665 (1986)--the petitioners' complaint 
     that they never were afforded the opportunity to comment 
     publicly upon these figures, or to cross-examine any EPA 
     witnesses regarding them, is particularly telling.
       [37] The EPA also banned roof coatings, roof shingles, non-
     roof coatings, and asbestos paper products. Again, we have 
     little to add beyond our discussions already concluded, 
     especially regarding TSCA's requirement that the EPA always 
     choose the least burdensome alternative, whether it be 
     workplace regulation, labeling, or only a partial ban. We 
     note, however, that in those cases in which a complete ban 
     would save less than one statistical life, such as those 
     affecting asbestos paper products and certain roofing 
     materials, the EPA has a particular need to examine the less 
     burdensome alternatives to a complete ban.
       Where appropriate, the EPA should consider our preceding 
     discussion as applicable to their bans of these products. By 
     following the dictates of Chemical Mfrs. Ass'n, 899 F.2d at 
     359, that the quantities of the regulated chemical entering 
     into the environment be ``substantial,'' and that the human 
     exposure to the chemical also must be ``substantial'' or 
     ``significant,'' as well as our concerns expressed in this 
     opinion, the EPA should be able to determine the proper 
     procedures to follow on its reconsideration of its rule and 
     present the cogent explanation of its actions as required 
     under Chemical Manufacturers Association.


                                   D

        Ban of Products Not Being Produced in the United States

       Petitioners also contend that the EPA overstepped TSCA's 
     bounds by seeking to ban products that once were, but no 
     longer are, being produced in the United States. We find 
     little merit to this claim, considering that sections 5 and 6 
     of TSCA allow the EPA to ban a product ``that presents or
      will present'' a significant risk. (Emphasis added.)
       Although petitioners correctly point out that the value of 
     a product not being produced is not zero, as it may find some 
     future use, and that the EPA here has banned items where the 
     estimated risk is zero, this was not error on the part of the 
     EPA. The numbers appear to favor petitioners only because 
     even products with known high risks temporarily show no risk 
     because they are not part of this country's present stream of 
     commerce. This would soon change if the produce returned, 
     which is precisely what the EPA is trying to avoid.
       Should some unlikely future use arise for these products, 
     the manufacturers and importers have access to the waiver 
     provision established by the EPA for just these 
     contingencies. Under such circumstances, we will not disturb 
     the agency's decision to ban products that no longer are 
     being produced in or imported into the United States.
       [38] Similarly, we also decide that the EPA properly can 
     attempt to promulgate a ``clean up'' ban under TSCA, 
     providing it takes the proper steps in doing so. A clean-up 
     ban, like the asbestos ban in this case, seeks to ban all 
     uses of a certain toxic substance, including unknown, future 
     uses of the substance. Although there is some merit to 
     petitioners' argument that the EPA cannot possibly evaluate 
     the costs and benefits of banning unknown, uninvented 
     products, we hold that the nebulousness of these future 
     products, combined with TSCA's language authorizing the EPA 
     to ban products that ``will'' create a public risk, allows 
     the EPA to ban future uses of asbestos even in products not 
     yet on the market.


                                   E

                        Fundamental EPA Choices

       Finally, we note that there are many other issues raised by 
     petitioners, such as the EPA's decision to treat all types of 
     asbestos the same, its conclusion that various lengths of 
     fibers present similar toxic risks, and its decision that 
     asbestos
      presents similar risks even in different industries. See 
     generally 54 Fed.Reg. at 29,470-71 (detailing differences 
     in potency of chrysotile and other forms of asbestos and 
     toxicity of various fiber lengths). We mention these 
     concerns now only to reject them.
       Of these, any many similar points, the petitioners merely 
     seek to have us reevaluate the EPA's initial evaluation of 
     the evidence. While we can, and in this opinion do, question 
     the agency's reliance upon flawed methodology and its failure 
     to consider factors and alternatives that TSCA explicitly 
     requires it to consider, we do not sit as a regulatory agency 
     ourselves. Decisions such as the EPA's decision to treat 
     various types of asbestos as presenting similar health risks 
     properly are better left for agency determination and, while 
     the EPA is free to reconsider its data should it so choose 
     when it revisits this area, it also is free to adopt similar 
     reasoning in the future.

                                   VI

                               Conclusion

       In summary, of most concern to us is that the EPA has 
     failed to implement the dictates of TSCA and the prior 
     decisions of this and other courts that, before it impose a 
     ban on a product, it first evaluate and then reject the less 
     burdensome alternatives laid out for it by Congress. While 
     the EPA spend much time and care crafting its asbestos 
     regulation, its explicit failure to consider the alternatives 
     required of it by Congress deprived its final rule of the 
     reasonable basis it needed to survive judicial scrutiny.
       Furthermore, the EPA's adoption of the analogous exposure 
     estimates during the final weeks of its rulemaking process, 
     after public comment was concluded, rather than during the 
     ten years during which it was considering the asbestos ban, 
     was unreasonable and deprived the petitioners of the notice 
     that they required in order to present their own evidence on 
     the validity of the estimates and its data bases. By 
     depriving the petitioners of their right to
      cross-examine EPA witnesses on methodology and data used to 
     support as much as eighty percent of the proposed benefits 
     in some areas, the EPA also violated the dictates of TSCA.
       Finally, the EPA failed to provide a reasonable basis for 
     the purported benefits of its proposed rule by refusing to 
     evaluate the toxicity of likely substitute products that will 
     be used to replace asbestos goods. While the EPA does not 
     have the duty under TSCA of affirmatively seeking out and 
     testing all possible substitutes, when an interested party 
     comes forward with credible evidence that the planned 
     substitutes present a significant, or even greater, toxic 
     risk than the substance in question, the agency must make a 
     formal finding on the record that its proposed action still 
     is both reasonable and warranted under TSCA.
       We regret that this matter must continue to take up the 
     valuable time of the agency, parties and undoubtedly, future 
     courts. The requirements of TSCA, however, are plain, and the 
     EPA cannot deviate from them to reach its desired result. We 
     therefore GRANT the petition for review, VACATE the EPA's 
     proposed regulation, and REMAND to the EPA for further 
     proceedings in light of this opinion.\28\
       On Petition for Review of a Rule of the Environmental 
     Protection Agency.
       ON MOTION FOR CLARIFICATION
       Before BROWN, SMITH, and WIENER, Circuit Judges.
       PER CURIAM:
       [39] Respondents, the Environmental Protection Agency (EPA) 
     and William K. Reilly, seek a clarification of the status of 
     the phase 1, or stage 1, provisions in the challenged rule, 
     which provisions ban, effective August 27, 1990, the 
     manufacture, importation, and processing of asbestos 
     containing corrugated and flat sheet, asbestos clothing, 
     flooring felt, pipeline wrap, roofing felt, and vinyl/
     asbestos floor tile, and any new uses of asbestos. See 40 
     C.F.R. Sec. Sec. 763.165(a)-.167(a). The rule also requires 
     labeling of phase 1 products after
      August 27, 1990, see id. Sec. 763.171(a), and prohibits the 
     distribution in commerce of such products after August 27, 
     1992, see id. Sec. 763.169(a). See Corrosion Proof 
     Fittings v. EPA, 947 F.2d 1201, 1208 & n. 2 (5th Cir. 
     1991).
       Respondents assert that the clarification is needed 
     because, in part V.D of our opinion, id. at 1228-29, we have 
     held that the EPA may ``ban products that once were, but no 
     longer are, being produced in the United States.'' Thus, the 
     motion seeks clarification of the status of any products that 
     still were being manufactured, imported, or processed on July 
     12, 1989, which is the date on which the final rule was 
     issued, see 54 Fed. Reg. 29,459 (1989), but which no longer 
     were being manufactured, imported, or processed, as a result 
     of the phase 1 ban, on the date of our opinion, which is 
     October 18, 1991.
       The motion for clarification is GRANTED. The holding in 
     part V.D of our opinion applies only to products that were 
     not being manufactured, imported, or processed on July 12, 
     1989, the date of the rule's promulgation. To the extent, if 
     any, that there is doubt as to whether particular products 
     are in that category, the EPA may resolve the factual dispute 
     on remand.
       1. OSHA began to regulate asbestos in the workplace in 
     1971. At that time, the permissible exposure limit was 12 
     fibers per cubic centimeter (f/cc), which OSHA lowered 
     several times until today it stands at 0.2 f/cc. OSHA 
     currently is considering lowering the limit to 0.1 f/cc, 
     following a challenge to the regulation in Building & Constr. 
     Trades Dep't v. Brock, 838 F.2d 1258, 1267-69 (D.C. Cir. 
     1988). The Mine Safety and Health Administration (MSHA) since 
     1976 has limited mine worker asbestos exposure to 2 f/cc. See 
     30 C.F.R. Sec. 71.702 (1990).
       The Consumer Product Safety Commission (CPSC) has banned 
     consumer patching compounds containing respirable asbestos, 
     see 16 C.F.R. Sec. Sec. 1304-05 (1990), and also requires 
     labeling for other products containing respirable asbestos. 
     Similarly, the Food and 

[[Page S 10206]]
     Drug Administration has banned general-use garments containing asbestos 
     unless used for protection against fire. See 16 C.F.R. 
     Sec. 1500.17 (1990).
       2. The main products covered by each ban stage are as 
     follows:
       (1) Stage 1: August 27, 1990: ban on asbestos-containing 
     floor materials, clothing, roofing felt, corrugated and flat 
     sheet materials, pipeline wrap, and new asbestos uses;
       (2) Stage 2: August 25, 1993: ban on asbestos-containing 
     ``friction products'' and certain automotive products or 
     uses;
       (3) Stage 3: August 26, 1996: ban on other asbestos-
     containing automotive products or uses, asbestos-containing 
     building materials including non-roof and roof coatings, and 
     asbestos cement shingles.
       See 54 Fed. Reg. at 29,461-62.
       3. See Bell v. Wolfish, 441 U.S. 520, 531 n. 13, 99 S.Ct. 
     1861, 1870 n. 13, 60 L.Ed.2d 447 (1979). While it is true 
     that the joint brief of petitioners Centrale des Syndicats 
     Democratiques, Confederation des Syndicats Nationaux, and 
     United Steel Workers of America (Canada) (collectively along 
     with petitioner Cassiar Mining Corp. (Cassiar), the 
     ``Canadian petitioners'') also deal with some of the same 
     issues raised by amici, we hold in part II.B, infra, that 
     these petitioners lack standing. The arguments of amici 
     cannot be bootstrapped into this case based upon the 
     arguments of petitioners who themselves lack standing.
       4. The EPA also seeks to bar the brief of Grinnell College. 
     That brief, however, presents arguments directly related to 
     the arguments raised by the parties seeking to prevent the 
     ban of asbestos shingles.
       5. Association of Data Processing Serv. Orgs. v. Camp, 397 
     U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); 
     accord Panhandle Producers & Royalty Owners Ass'n v. Economic 
     Regulatory Admin., 847 F.2d 1168, 1173-74 (5th Cir. 1988); 
     Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 282 
     (D.C.Cir. 1988) (per curiam), cert. denied, 490 U.S. 1106, 
     109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989). We note that the 
     zone of interest test is not one universally applied outside 
     the context of the Administrative Procedure Act (APA), see 
     Clark v. Securities Indus. Ass'n. 479 U.S. 388, 400, n. 16, 
     107 S.Ct. 750, 757 n. 16, 93 L.Ed.2d 757 (1987), but because 
     it is the most useful factor in considering Congressional 
     intent on the question of standing, we invoke it as an aid to 
     our decisionmaking today, as we sometimes have in the past. 
     Cf. Moses v. Banco Mortgage Co., 778 F.2d 267, 271 (5th Cir. 
     1985).
       6. See, e.g., Carey v. Population Serv. Int'l. 431 U.S. 
     678, 683-84 & n. 4, 97 S.Ct. 2010, 2015 & n. 4, 52 L.Ed.2d 
     675 (1977); National Cottonseed Prods. Ass'n v. Brock, 825 
     F.2d 482, 489-92 (D.C.Cir. 1987), cert. denied, 485 U.S. 
     1020, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988); FAIC Sec. v. 
     United States, 768 F.2d 352, 357-61 (D.C.Cir. 1985). Carey, 
     however, gives jus tertii standing to a party only if the 
     party directly affected is incapable of asserting its own 
     interests, which is not true in the instant case. See Carey, 
     431 U.S. at 683-84, 97 S.Ct. at 2015; accord Craig v. Boren, 
     429 U.S. 190, 195-96, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 
     (1976). The cases from the District of Columbia Circuit, 
     represented by National Cottonseed and FAIC Securities, 
     appear to go too far in expanding the exception in the 
     vendor-vendee relationship, at least when evaluating a 
     statute so purely national in scope.
       7. See Warth, 422 U.S. at 501, 95 S.Ct. at 2206 (noting 
     that courts generally are relucant ``to extend judicial power 
     when the plaintiff's claim to relief rests on the legal 
     rights of third parties''). Cassiar mentions only one case, 
     Construction Civiles de Centroamerica, S.A. v. Hannah, 459 
     F.2d 1183, 1190-91 (D.C.Cir. 1972), in which a foreign vendor 
     was able to borrow its domestric vendee's standing rights to 
     pursue its own claim. That case, however, involved the APA, 
     which, unlike TSCA, does not confine itself to matters 
     concerning national economic interests.
       8. The Canadian petitioners also allege that United States 
     treaty obligations, such as the provisions of the General 
     Agreement on Tariffs and Trade (GATT), award them the right 
     to protest the EPA's actions. GATT requires nations to 
     indicate that their environmental decisions meet 
     international standards, thus preventing countries from using 
     arbitrary environmental rulings as de facto trade barriers. 
     GATT, however, establishes trade dispute procedures of its 
     own. These Canadian parties therefore have no standing here 
     to challenge the EPA's decision.
       9. These complaints include the failure of the EPA to 
     cross-examine petitioners' witnesses, which it was not 
     required to do, and the EPA's decision not to designate an 
     AIJ, which also was within its discretion under 40 C.F.R. 
     Sec. Sec. 750.7 and 750.8 (1990). Similarly, the EPA's 
     failure to issue subpoenas was of little moment, as the 
     petitioners in fact suffered no injury from the lack of 
     subpoenas. See id. Sec. 750.5.
       We also note that while an independent panel of experts 
     often might be needed, in this case the EPA was not required 
     to assemble such a panel on asbestos disease risks, as it 
     already possessed an abundance of information on the subject, 
     including a report by the members of the Ontario Royal 
     Commission, a study often cited by the petitioners 
     themselves. Considering the number of studies available, the 
     EPA was not required to assemble its own panel to duplicate 
     them, except to fill in any gaps.
       10. According to the EPA, if the analogous exposure 
     estimates were not included, the benefits of the rule would 
     decrease from 168 to 120 deaths avoided, discounted at 3%. 54 
     Fed. Reg. at 29,469, 29,485. The analogous exposure 
     estimates, adopted after hearings were concluded, thus 
     increase the purported benefits of the rule by more than one-
     third.
       11. For some of the products, such as the beater-add and 
     sheet gaskets, the analogous exposure analysis completely 
     altered the EPA's calculus and multiplied four- or five-fold 
     the anticipated benefits of the proposed regulation. This was 
     a change sufficient to make the proceedings unfair to the 
     petitioners and was of sufficient importance that the EPA's 
     failure to afford any cross-examination on this issue was an 
     abuse of discretion.
       12. The term ``rulemaking record'' means (A) the rule being 
     reviewed; (B) all commentary received in response to the 
     (EPA) Administrator's notice of proposed rulemaking, and the 
     Administrator's own published statement of the effects of 
     exposure of the substance on health and the environment, the 
     benefits of the substance for various uses and the 
     availability of substitutes for such uses, and ``the 
     reasonably ascertainable economic consequences of the rule'' 
     on the national economy, small business, technological 
     innovation, the environment, and public health; (C) 
     transcripts of hearings on promulgation of the rule; (D) 
     written submissions of interested parties; and (E) any other 
     information the Administrator deems relevant. See 15 U.S.C. 
     Sec. 2618(a)(3) (referring to Sec. Sec. 2604(f) and 
     2605(c)(1) in regard to component (B) above).
       13. The EPA cites Superior Oil Co., 563 F.2d at 199, an APA 
     case, for the proposition that in informal rulemaking, the 
     arbitrary and capricious standard and the substantial 
     evidence standard ``tend to converge.'' While it certainly is 
     true that the requirement of substantial evidence within 
     formal rulemaking is more strenuous, we acknowledged in 
     Superior Oil that when comparing arbitrary and capricious to 
     substantial evidence, ``[i]t is generally accepted that the 
     latter standard allows for `a considerably more generous 
     judicial review' than does the former.'' Id. (quoting Abbott 
     Laboratories, 387 U.S. at 143, 87 S.Ct. at 1512). Considering 
     that Congress specifically rejected the arbitrary and 
     capricious standard in the TSCA context, we will not act now 
     to read that same standard back in by holding that the two 
     standards are in fact one and the same.
       14. Cf. Southland Mower Co. v. CPSC, 619 F.2d 499, 510 (5th 
     Cir. 1980) (``It must be remembered that `[t]he statutory 
     term ``unreasonable risk'' presupposes that a real, and not a 
     speculative, risk be found to exist and that the Commission 
     bear the burden of demonstrating the existence of such a risk 
     before proceeding to regulate.' '' (Citation omitted.)).
       15. The statute provides, in order, the possible regulatory 
     schemes as follows:
       (1) A requirement (A) prohibiting the manufacturing, 
     processing, or distribution in commerce of such substance or 
     mixture, or (B) limiting the amount of such substance or 
     mixture which may be manufactured, processed, or distributed 
     in commerce.
       (2) A requirement--
       (A) prohibiting the manufacture, processing, or 
     distribution in commerce of such substance or mixture for (i) 
     a particular use or (ii) a particular use in a concentration 
     in excess of a level specified by the Administrator in the 
     rule imposing the requirement, or
       (B) limiting the amount of such substance or mixture which 
     may be manufactured, processed, or distributed in commerce 
     for (i) a particular use or (ii) a particular use in a 
     concentration in excess of a level specified by the 
     Administrator in the rule imposing the requirement.
       (3) A requirement that such substance of mixture or any 
     article containing such substance or mixture be marked with 
     or accompanied by clear and adequate warnings and 
     instructions with respect to its use, distribution in 
     commerce, or disposal or with respect to any combination of 
     such activities. The form and content of such warnings and 
     instructions shall be prescribed by the Administrator.
       (4) A requirement that manufacturers and processors of such 
     substance or mixture make and retain records of the processes 
     used to manufacture or process such substance or mixture and 
     monitor or conduct tests which are reasonable and necessary 
     to assure compliance with the requirements of any rule 
     applicable under this subsection.
       (5) A requirement prohibiting or otherwise regulating any 
     manner or method of commercial use of such substance or 
     mixture.
       (6) (A) A requirement prohibiting or otherwise 
     regulating any manner or method of disposal of such substance 
     or mixture, or of any article containing such substance or 
     mixture, by its manufacturer or processor or by any other 
     person who uses, or disposes of, it for commercial purposes.
       (B) A requirement under subparagraph (A) may not require 
     any person to take any action which would be in violation of 
     any law or requirement of, or in effect for, a State or 
     political subdivision, and shall require each person subject 
     to it to notify each State and political subdivision in which 
     a required disposal may occur of such disposal.
       (7) A requirement directing manufacturers or processors of 
     such substance or mixture (A) to give notice of such 
     unreasonable risk of injury to distributors in commerce of 
     such substance or mixture and, to the extent reasonably 
     ascertainable, to other persons in possession of such 
     substance or mixture or exposed to such substance or mixture, 
     (B) to give public notice of such risk of injury, and (C) to 
     replace or repurchase such substance or mixture as elected by 
     the person to which 

[[Page S 10207]]
     the requirement is directed. 15 U.S.C. Sec. 2605(a). As is plain from 
     the order in which they are listed, options at the top of the 
     list are the most burdensome regulatory options, 
     progressively declining to the least burdensome option.
       16. EPA argues that OSHA can only deal with workplace 
     exposures to asbestos and that the CPSC and MSHA cannot take 
     up the slack, as the CPSC can impose safety standards for 
     asbestos products based only upon the risk to consumers, and 
     MSHA can protect against exposure only in the mining and 
     milling process. These agencies leave unaddressed dangers 
     posed by asbestos exposure through product repair, 
     installation, wear and tear, and the like.
       17. Although we, as always, rely mainly upon the language 
     of the statute to determine Congress's intent, we also note 
     that the legislative history of TSCA supports the notion of 
     TSCA's least-to-most-burdensome hierarchy. As the Senate 
     sponsor of the ``least burdensome'' requirement stated, 
     Congress did ``not want to give the Administrator unlimited 
     authority and let him say, `I will impose this control, if 
     there are other controls that are effective and are less 
     burdensome on the industry.' '' 122 Cong. Rec. 8295 (1976) 
     (statement of Sen. Cannon).
       In addition, the EPA itself acknowledges this hierarchy 
     when it states in its brief that ``TSCA authorizes and 
     directs [the] EPA to impose that burden [of a total ban] if 
     the risks of a substance cannot be adequately addressed in 
     another way.'' (Emphasis added.) The EPA does not explain how 
     it can determine that the risks of a substance cannot be 
     addressed in another way if it refuses to make a finding that 
     the alternatives will not discharge the EPA's TSCA burden. It 
     cannot simply state that there is no level of zero risk 
     asbestos use and then impose the most burdensome alternative 
     on that sole basis.
       We do not today determine what an appropriate period for 
     the EPA's calculations would be, as this is a matter better 
     left for agency discretion. See Motor Vehicle Mfrs. Ass'n 463 
     U.S. at 53, 103 S.Ct. at 2872. We do note, however, that the 
     choice of a thirteen-year period is so short as to make the 
     unquantified period so unreasonably large that any EPA 
     reliance upon it must be displaced.
       Under the EPA's calculations, a twenty-year-old worker 
     entering employment today still would be at risk from 
     workplace dangers for more than thirty years after the EPA's 
     analysis period had ended. The true benefits of regulating 
     asbestos under such calculations remain unknown. The EPA 
     cannot choose to leave these benefits high and then use the 
     high unknown benefits as a major factor justifying EPA 
     action.
       We also note that the EPA appears to place too great a 
     reliance upon the concept of population exposure. While a 
     high population exposure certainly is a factor that the EPA 
     must consider in making its calculations, the agency cannot 
     count such problems more than once. For example, in the case 
     of asbestos brake products, the EPA used factors such as risk 
     and exposure to calculate the probable harm of the brakes, 
     and then used, as an additional reason to ban the products, 
     he fact that the exposure levels were high. Considering that 
     calculations of the probable harm level, when reduced to 
     basics, simply are a calculation of population risk 
     multiplied by population exposure, the EPA's redundant use of 
     population exposure to justify its actions cannot stand.
       3. Reasonable Basis.
       In addition to showing that its regulation is the least 
     burdensome one necessary to protect the environment 
     adequately, the EPA also must show that it has a reasonable 
     basis for the regulation. 15 U.S.C. Sec. 2605(a). To some 
     extent, our inquiry in this area mirrors that used above, for 
     many of the methodological problems we have noted also 
     indicate that the EPA did not have a reasonable basis. We 
     here take the opportunity to highlight some areas of 
     additional concern.
       18. Recently, in a different context, we observed the 
     important distinction between present and future injury. See 
     Willett v. Baxter Int'l, Inc., 929 F.2d 1094, 1099-1100 & n. 
     20 (5th Cir.1991).
       19. We also note that the EPA chose to use a real discount 
     rate of 3%. Because historically the real rate of interest 
     has tended to vary between 2% and 4%, this figure was not 
     inaccurate.
       The EPA also did not err by calculating that the price of 
     substitute goods is likely to decline at a rate of 1% per 
     year, resulting from economies of scale and increasing 
     manufacturing prowess. Because the EPA properly limited the 
     scope of these declines in its models so that the cost of 
     substitutes would not decline so far as to make the price of 
     the substitutes less than the cost of the asbestos they were 
     forced to replace, this was not an unreasonable real rate of 
     price decline to adopt.
       20. We thus reject the arguments made by the Natural 
     Resources Defense Council, Inc., and the Environmental 
     Defense Fund, Inc., that the EPA's decision can be justified 
     because the EPA ``relied on many serious risks that were 
     understated or not quantified in the final rule,'' presented 
     figures in which the ``benefits are calculated only for a 
     limited time period,'' and undercounted the risks to the 
     general population from low-level asbestos exposure. In 
     addition, the intervenors argue that the EPA rejected using 
     upper estimates, see 54 Fed.Reg. at 29,473, and that this 
     court now should use the rejected limits as evidence to 
     support the EPA. They thus would have us reject the upper 
     limit concerns when they are not needed, but use them if 
     necessary.
       We agree that these all are valid concerns that the EPA 
     legitimately should take into account when considering 
     regulatory action. What we disagree with, however, is the 
     manner in which the EPA incorporated these concerns. By not 
     using such concerns in its quantitive analysis, even where 
     doing so was not difficult, and reserving them as additional 
     factors to buttress the ban, the EPA improperly transformed 
     permissible considerations into determinative factors.
       21. This is not to say that an interested party can 
     introduce just any evidence of a suspected carcinogen or 
     other toxin in its efforts to slow down a valid EPA 
     regulation. The agency may, within its discretion, consider 
     the probable merits of such dilatory tactics and act 
     appropriately. Cf. National Grain & Feed Ass'n, 866 F.2d at 
     734 (``[W]e do not require the agency to respond in detail to 
     every imaginable proposal for tighter standards.''). Where, 
     however, the health risks of substitutes, such as non-
     asbestos brakes and polyvinyl chloride (PVC) pipe, are both 
     plausible and known, the EPA must consider not only the 
     probable costs of continued use of the product it is 
     considering, but also the harm that
      would follow from its regulation and increased use of an 
     alternate, harmful product.
       22. We note that at least part of the EPA's arguments rest 
     on the assumption that regulation will not work because the 
     federal government will not adequately enforce any workplace 
     standards that the EPA might promulgate. This is an improper 
     assumption. The EPA should assume reasonable efforts by the 
     government to implement its own regulations. A governmental 
     agency cannot point to how poorly the government will 
     implement regulations as a reason to reject regulation. 
     Rather, the solution to poor enforcement of regulations is 
     better enforcement, not more burdensome alternative solutions 
     under TSCA.
       23. See Environmental Defense Fund, 636 F.2d at 1275 n. 17 
     (``[W]e must construe the statute `so that no provision will 
     be inoperative or superfluous' '' (quoting Motor & Equip. 
     M[rs. Ass'n v. EPA, 627 F.2d 1095, 1108 (D.C.Cir. 1979), 
     cert. denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d 808 
     (1980))); see also Old Colony R.R. v. Commissioner, 284 U.S. 
     552, 560, 52 S.Ct. 211, 213, 76 L.Ed. 484 (1932) (in 
     interpreting statutory language, ``the plain, obvious and 
     rational meaning of a statute is to be preferred to any 
     curious, narrow, hidden sense'').
       As the petitioners point out, the EPA regularly rejects, as 
     unjustified, regulations that would save more lives at less 
     cost. For example, over the next 13 years, we can expect more 
     than a dozen deaths from ingested toothpicks--a death toll 
     more than twice what the EPA predicts will flow from the 
     quarter-billion-dollar bans of asbestos pipe, shingles, and 
     roof coatings. See L. Budnick, Toothpick-Related Injuries in 
     the United States, 1979 Through 1982, 252 J. Am. Med. Ass'n, 
     Aug. 10, 1984, at 796 (study showing that toothpick-related 
     deaths average approximately one per year).
       24. In large part, our analysis draws upon our general 
     discussion already concluded. Where necessary, however, we 
     develop specific themes more appropriately addressed in the 
     context of a specific product. The EPA on subsequent review 
     should consider these specific comments as applicable to its 
     procedures dealing with other products, where necessary. In 
     other words, by presenting a concern in the context of one 
     product, we do not mean to imply that it arises only in that 
     area.
       25. One of the study's authors, Mr. Anderson, submitted 
     written testimony that the ``replacement/substitution of 
     asbestos-based with nonasbestos brake linings will produce 
     grave risks'' and that ``the expected increase of skid-
     related highway accidents and resultant traffic deaths would 
     certainly be expected to overshadow any potential health-
     related benefits of fiber substitution.'' The ASME report 
     itself concludes only that ``[i]f the eventual elimination of 
     all asbestos in friction products is to be accomplished, 
     additional future studies are required.'' This is an 
     insufficient basis upon which to support the EPA's judgment 
     that non-asbestos brakes are just as safe as asbestos brakes.
       26. In this case, the EPA extrapolated data regarding 
     asbestos exposure during installation of asbestos pipe 
     products and estimated, by formula, how often workers would 
     be exposed to asbestos during repair and disposal.
       27. The EPA estimates drop from 32.24 discounted lives to 
     6.68 discounted lives without the analogous exposure data.
       28. Pursuant to the Internal Operating Procedures 
     accompanying Fifth Cir.Loc.R. 47, Judge Brown reserves the 
     right to file a separate opinion.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, we will be having the vote on the Glenn-
Chafee substitute after our respective conferences today at noon. I 
have several wrap-up remarks I want to make before we do break at 
12:30.
  The first thing I want to address is each day now we heard examples 
from proponents of Dole-Johnston about how silly some of these 
regulations are, and I agree with that. We have a lot that are very, 
very silly. I believe we have bureaucratic excess. We need regulatory 
reform, and there are plenty of 

[[Page S 10208]]
anecdotal stories to go around about what the problems are.
  But I do not think we need to make our Government look any more 
stupid than it actually is, in some instances, and some of the things 
that have been stated as silly regulations have proven, upon 
investigation, to be not true. We do not need reform based on half 
truths and inaccuracies. Many of these stories have been shown to be 
not true or are, at least, serious exaggerations.
  Let me give an example. The other day I believe the Senator from Utah 
said that if a company spills 1 pint of antifreeze, the Federal 
Government requires it to notify the Coast Guard in Washington. That is 
simply not true.
  The main ingredient of antifreeze is ethylene glycol. It is covered 
by the Clean Air Act because of its high evaporation rate. According to 
EPA, you have to spill over 1,000 pounds of antifreeze to have to 
report an ethylene glycol spill; 1,000 pounds comes out to about 140-
some gallons, 143 or 144 gallons, I believe. That would be almost three 
barrels of ethylene glycol that would have to be spilled.
  If you did spill that much, you are supposed to report it to the 
National Response Center, which is staffed by Coast Guard personnel as 
part of a multiagency support for that Center. It is not just reporting 
to the Coast Guard. But the facts of the case are, it is 1,000 pounds 
and you report it to this Center, which is staffed by Coast Guard 
personnel as part of a multiagency support force.
  There was also a claim made the other day that Federal rules prevent 
a farmer from diverting water from a river, even when the farm drains 
back into the same river, and this happened despite the involvement, I 
guess the story goes, even with the approval of the BLM, the Forest 
Service, and the State government.
  I never saw any substantiation for this story, but I do believe that 
while the water diversion problem may have existed during past 
administrations when they allowed wetlands regulations to be divided 
among agencies with no coordination, that is not the case now. The 
Clinton administration uses an interagency memorandum of understanding 
that provides for coordination among agencies, that provides for 
farmers and ranchers to interact with only one agency, and provides a 
single set of guidelines coming out from the Government. Once again, 
there is a new approach to this being taken by this administration that 
makes the anecdotal information at, very best, an exaggeration.
  Another example of distortion was the claim that EPA insists on 
regulating asbestos even when it says that the number of annual deaths 
from toothpick ingestion exceeds the number of deaths from asbestos 
exposure. This proves to be just flat wrong.
  According to EPA, a 1984 American Medical Association study showed 
that toothpick-related deaths average about 1 per year for the whole 
Nation out of our 260 million people, or close to that many. In 1988, 
EPA released a report that estimated that 4,280 people have died over 
the past 130 years due to asbestos in the buildings in which they live. 
That averages out to more than 30 deaths a year.
  According to EPA, this is actually a low estimate because many more 
asbestos-related deaths can be expected for building workers, such as 
custodians who are exposed at much higher levels. So here, again, we 
have the facts that show that the proponents are distorting the truth 
and relying on inaccurate anecdotal stories to create a false image of 
our Government.
  Sure, we want reform. Yes, Government needs to work better, but let 
us be reasonable. Let us use common sense. We do not need to make up 
stories about the Government working against the public interest and 
then end up throwing out the baby with the bath water, as my colleague 
from California, Senator Feinstein, put it yesterday. Let us not 
jeopardize public health and safety with scare stories of bureaucratic 
excess. Too much is at stake to justify such callous disregard for the 
public interest or the truth.
  Mr. President, regulatory reform is one of the most important issues 
we are going to take up this whole Congress. There is clearly a need to 
reform the regulatory process. We can all tell the horror stories of 
regulations gone awry, but before we rush to fix a problem with even 
worse medicine, let us take a hard look at what balanced, fair, and 
effective regulatory reform is all about.
  I believe that regulatory reform must not only alleviate unnecessary 
burdens on businesses and on States and on local governments and on 
individuals, but at the same time it must also ensure the Government's 
ability to protect the health, safety, and environment of the American 
people. That is my twofold test. That is a test of balance that is in 
the best interest of all the people of this country.
  Today, we have an opportunity to vote for true regulatory reform, 
reform that focuses on the biggest regulations, that makes agencies 
weigh the costs and benefits of their actions, that makes agencies take 
a hard look at the regulations on the books. At the same time, we have 
the opportunity to vote for reform that maintains the ability of 
agencies to do their jobs. That is commonsense reform, and the Glenn-
Chafee substitute to S. 343 is pure common sense.
  Let me outline six major differences between the Glenn-Chafee 
substitute and the Dole-Johnston substitute. I hope those listening in 
their offices, those who may not have decided how they are going to 
vote yet after our noon break, will listen to these things and consider 
them very, very carefully, because these are major reasons why I feel 
you should support the Glenn-Chafee substitute.
  First, the Glenn-Chafee substitute focuses on truly major rules. We 
require truly significant rules--it will be between 100 and 200 rules 
per year--to go through rigorous cost-benefit analyses and risk 
assessment requirements. Even though we voted to amend the threshold of 
a major rule to $100 million in the Dole-Johnston substitute, we also 
voted to require any rule that has a significant impact on small 
businesses to go through the rigorous cost-benefit analyses and risk 
assessment requirements.
  Therefore, the Dole-Johnston substitute bill will still cover several 
hundred more rules than the Glenn-Chafee substitute and will tie up 
scarce agency resources with little added benefit. In fact, the 
estimate is this will run it up to somewhere between 500 and 800 
regulations that would have to be reviewed per year. These are not 
cheap to do.
  Alice Rivlin estimated that when it was at a $50 million estimate, 
that we would require an additional $1.3 billion and 4,500 additional 
full-time employees. Now this is run up several times over that, and I 
would presume that $1.3 billion per year is going to be exceeded by the 
requirements that we find in the Dole-Johnston substitute now.
  That was not in the original bill, I realize, but it was voted on the 
floor, and as of now the small businesses going through the rigorous 
cost-benefit analyses and risk assessment requirements will run the 
cost and complexity of this way up.
  Our goal should not be to swamp the agencies so they are unable to 
carry out their missions. Whether that mission be to protect the 
health, safety, or environment or another important public function, 
our goals should be to help them do their jobs more effectively. We 
should require these rigorous cost-benefit analyses and risk 
assessments for the rules that have a significant impact on the 
economy, not for all the rules now covered by S. 343. That is why a 
vote for the Glenn-Chafee substitute is a vote for commonsense reform.
  Second, the Glenn-Chafee substitute requires cost-benefit analysis 
for all major rules, but does not make the agencies pass a least-cost, 
cost-benefit test. That is its decisional criteria, before issuing 
rules. Costs and benefits are often hard to quantify and cost-benefit 
analysis, while useful, is less than perfect. It is a developing 
science.
  The Dole-Johnston substitute requires agencies to pass a set of four 
rigid tests before they can issue a major rule. Most troubling of these 
criteria is the least-cost test. The agency must pick the cheapest 
alternative, even if for a few more dollars it could save hundreds of 
more lives or reduce pollution by a much greater amount. In other 
words, common sense goes out the door on this approach. It has to be 

[[Page S 10209]]
least cost. Examples on the floor were given. If you had an additional 
cost of $2, and it would save an additional 200 lives, you could not 
put that into effect because you have to use least cost in the Dole-
Johnston substitute as it is now constituted.
  Dole-Johnston does allow agencies to use other more costly 
alternatives, but only in the case of ``scientific uncertainties,'' or 
``nonquantifiable benefits.'' So if the agency is certain about a 
benefit or can quantify how much extra benefit they gain by using 
something other than the least-cost alternative, they are prohibited 
from doing it. That just does not make any sense at all.
  Because these decisional criteria are tests that the agency must pass 
before promulgating a rule, the issue of whether the benefits really do 
justify the costs and whether the agency picked the least-cost 
alternative will certainly become matters for the lawyers to settle in 
court.
  Agencies should absolutely be required to use cost-benefit analysis. 
I think we all agree on that. But they should not be forced to pass a 
rigid least-cost, cost-benefit test to issue every major rule. If an 
agency does not think a rule's benefits justify its costs, but still is 
required by law to issue that rule, the rule should come back to us in 
Congress. That is where the responsibility lies, and that is what we 
provide in this legislation. It can come back to Congress, and that is 
where it should be, because after all, as much as 80 percent of agency 
rules are strictly required by laws we have passed in the Congress. I 
keep coming back to this point, but the plain truth is that if we 
really want regulatory reform, we should start fixing the laws we have 
passed, not load up the agencies and the American people with more 
bureaucratic procedures and more litigation. That is what Dole-Johnston 
does.
  Third, the Glenn-Chafee substitute provides for a review of current 
rules--in other words, laws, rules, regs, that are in effect now, maybe 
some have been in effect for many years--but with no automatic 
arbitrary sunset if agencies fail to review a rule.
  We provide for review of existing rules, much like the Dole-Johnston 
bill, but we do not have an automatic immediate sunset of rules if an 
agency fails to review those rules according to schedule.
  As the Senator from Louisiana points out, the agency may get up to a 
2-year extension. True. However, it is still true that if the agency 
still does not complete its review by then, then at that point, the 
rule becomes immediately unenforceable; in other words, it is canceled.
 So it does still sunset after the extension. The Glenn-Chafee 
substitute, on the other hand, requires an agency that fails to review 
a rule according to schedule to issue a notice of proposed rulemaking 
to repeal the rule. And this process allows public comment on the rule 
and ensures that a rule does not sunset arbitrarily. The agency must 
then complete this rulemaking action within 2 years, and such action is 
judicially reviewable.

  Also, an annual process is established for Congress to amend agency 
review schedules in cases where an agency does not schedule review of 
rules people think are in need of review. This process will lead to the 
review and elimination of outmoded rules. Dole-Johnston, with its 
review petition process, will lead to delay, waste of money, and 
lawsuits. Let me reemphasize these points and set the record straight 
from yesterday. All the charges that our agency review of existing 
rules has no teeth are just not true. Under Glenn-Chafee, agencies must 
review existing rules and solicit public comment on the review and on 
the schedule. Agencies just cannot sit back and do nothing about 
reviewing existing rules under the Glenn-Chafee substitute, as some of 
my colleagues said yesterday. Glenn-Chafee requires agencies to review 
existing rules, to set a schedule for that review, to solicit input 
from the public, and to complete that review within a time certain.
  The Dole-Johnston substitute creates a petition process for 
interested parties to get a rule on the schedule for review. These 
petitions are all judicially reviewable and there is no limit on the 
number of petitions; there can be hundreds, there can be thousands. The 
agency has two options. If the agency grants the petition, it has to 
complete the review of that rule within 3 years, or the rule sunsets. 
If they deny the petition, they can get dragged to court. It seems to 
me that puts the agency between a rock and a hard place--3 years or the 
courthouse. It also seems to me that these petitions put interested 
parties, like the regulated businesses, not the agencies, in the 
driver's seat.
  The Glenn-Chafee substitute has an enforcement mechanism to make sure 
agencies review rules, contrary to what we heard yesterday. Under 
Glenn-Chafee, agencies must publish a schedule to review rules. That is 
a requirement that is judicially reviewable. Agencies cannot just sit 
on their hands and not review rules. If an agency, upon review, decides 
to amend or repeal a rule, it must do so within 2 years, and that is 
judicially reviewable. If an agency does not complete its review of a 
rule within the allotted time, it must publish a notice of proposed 
rulemaking to repeal the rule. And it must complete that agency action 
within 2 years. And that is judicially reviewable. That is a real 
hammer.
  We do not allow judicial review of what rules the agency decides to 
put on the list or of the deadlines for the review of those rules. But 
agencies must solicit and consider public input into this process. We 
just want to make sure the agencies spend their time and resources 
doing a review of rules, not defending their every action in court. We 
think, once again, that just makes common sense.
  The Senator from Louisiana stated that the schedule for review of 
rules is in the sole discretion of the agency. This is misleading. We 
use the phrase ``sole discretion'' to stop industries and others from 
litigating what and when rules should be reviewed. If interested 
parties have complaints about rules not getting on the schedule, there 
is a specific process allowing annual amendments and additions to any 
schedule through Congress. If any groups of constituents feel that an 
important rule is being ignored by agencies, this is the politically 
accountable way to handle that problem. We should not add to the 
litigation explosion, the litigation burden that would otherwise be 
created through Dole-Johnston.
  Fourth, the Glenn-Chafee substitute is not a lawyer's dream. We allow 
for judicial review of, one, the determination of a major rule and, 
two, whether a final rule is arbitrary and capricious in light of the 
whole rulemaking file. We do not allow separate challenges of the 
procedures of cost-benefit analysis or risk assessment.
  The Dole-Johnston bill has much more judicial review which can be 
interpreted to allow a review of procedural compliance with analyses 
and assessments.
  Senator John Kerry of Massachusetts, yesterday, had a list of 88 
different points of judicial review. That was taken from a longer list, 
as I understand it, of 144 that one of the agencies said, as they 
interpret the bill as now proposed under Dole-Johnston--they could find 
144 separate areas where there could be judicial review. We have it 
here, and if I have time, I will read it. But under S. 343, this is one 
where OSHA has about 15 different places that they--more than that; it 
is about 30 different places where OSHA says they can see there would 
be judicial review, as they view it, unnecessarily, where things could 
just be tied up in court. I will get to that if I have time for it a 
little bit later.
  I think it is important to remember that S. 343 has many more 
provisions for judicial review than what is found in section 625, the 
section the Senator from Louisiana kept coming back to yesterday. The 
Dole-Johnston substitute creates numerous new positions that are 
judicially reviewable. It changes the standards for review for the 
Administrative Procedure Act, and it makes fundamental changes in the 
use of consent decrees and burden of proof for industry compliance. All 
of these changes in Dole-Johnston, coupled with the judicial review 
language in section 625, mean one thing: more lawsuits, more money 
spent on lawyers, less money spent on the public's business of 
protecting the health, safety, and environment.
  Fifth, the Glenn-Chafee substitute does not create brand new 
petitions by private persons that will eat up agency resources and will 
let special interests, not the agency or Congress, guide priorities. 
The Dole-Johnston bill creates 

[[Page S 10210]]
several new avenues for interested persons to petition agencies, 
including, one, issuance of amendment or repeal of a rule; two, 
amendment or repeal of an interpretive rule or general statement of 
policy or guidance; three, interpretation regarding meaning of a rule, 
interpretive rule, general statement of policy, or guidance; four, 
placing a rule on schedule for review; five, alternative methods of 
compliance; six, review of freestanding risk assessment. All petitions 
must be decided at a time certain, which ranges from 18 months to 180 
days. Except for the petition for alternative method of compliance, all 
these petition decisions are judicially reviewable. That is a massive 
number of points of judicial reviewability.
  Again, we see that the real effect of Dole-Johnston will be to create 
special avenues for special interests and more ways for lawyers to tie 
up agencies in court.
  The Glenn-Chafee substitute has no special interest provisions. The 
Dole-Johnston bill, on the other hand, has very specific fixes for 
special interests. For example, it changes the Delaney clause and EPA's 
toxic release inventory. These provisions have no place in a 
Government-wide regulatory reform bill. Changes to these important 
laws--and I think some changes should be made--should be handled by the 
committees of jurisdiction in the context of full debate about the 
underlying laws. They should not be piggybacked on the larger process 
bill.
  This way of lacing the process reform legislation with special 
interest fixes is not reform. It involves special pleadings for the 
special money few. The American people will pay a heavy price in the 
end if we go that route.
  These are six important reasons why we should support the Glenn-
Chafee substitute over the Dole-Johnston substitute. My colleague from 
Louisiana has tried to improve the underlying bill, S. 343. He has been 
out here on the floor every day, almost by himself, trying to make the 
case for his improvements. But I do not believe the improvements are 
enough. The bill is still too flawed to be supported. It endangered the 
public health and safety and the environment. It wastes Government 
resources. In enriches lawyers and bogs down the courts for the 
interests of a few. So I think we should enact the Glenn-Chafee 
substitute, which I feel is a commonsense reform.
  I want to also set the record straight about two additional issues in 
Glenn-Chafee that the proponents of Dole-Johnston misrepresented 
yesterday. First is the issue of exemptions. Glenn-Chafee has been 
criticized for not having enough exemptions. There are several issues 
involved here. There is one question about general exemptions. Both 
Dole-Johnston and Glenn-Chafee exempt several categories of rules from 
the regulatory reform legislation by exempting them from the 
definitions of rule and/or major rule. The question is, how do the two 
bills differ?
  Now, in total, I believe Dole-Johnston has more exemptions than 
Glenn-Chafee. I think some of these should actually be added to Glenn-
Chafee. But Dole-Johnston is also missing some exemptions that Glenn-
Chafee has. We need to get together on this. Dole-Johnston does not 
exempt actions relating to the removal of a product from commerce, for 
instance. It only exempts actions authorizing sales of a product. Now, 
this is wrong. If we allow expedited introduction of some product into 
the stores--that is, with no lengthy cost-benefit analysis and risk 
assessment--we should provide for expedited removal of dangerous 
products. That is only fair. Public health and safety demands no less.
  If we just think about the lignite situation of a few years ago, we 
can see why it is important that we be able to expeditiously remove 
dangerous products from the marketplace.
  Dole-Johnston also does not exempt Federal Election Commission rules 
and certain Federal Communication Commission rules relating to 
political campaigns. We believe the political nature of both these FEC 
and FCC rules recommend that they should not be treated like other 
rules. They may need review, but not under this legislation with review 
in the political environment of the White House and OMB.
  Dole-Johnston does have exemptions not in the Glenn-Chafee bill. 
These are exemptions that also were not in S. 291, our bipartisan 
Governmental Affairs Committee bill. They have been added since then. 
No. 1, Dole-Johnston exempts rules relating to customs, duties and 
revenue; No. 2, international trade law and agreements; No. 3 public 
debt; No. 4, relief from statutory prohibitions; No. 5, decisions of 
the Federal Energy Regulatory Commission; No. 6, matters involving 
financial responsibilities of securities brokers and dealers.
  Now, some of these exemptions do make a lot of sense. Customs duties 
and Treasury fiscal policy rules relating to the public debt, for 
example, should be exempted. These exemptions should be added to Glenn-
Chafee. There are some areas we can agree and should keep working to 
improve the legislation. I think that is what we should do--keep 
talking about these and work out the things we all agree on are best 
between these two approaches.
  Now, the issue of exemptions also involves the question about special 
exemptions. The debate last week went beyond the general exemptions to 
focus on whether special exemptions are needed to protect public health 
and safety rules. As my colleagues know, last week exemptions were 
added to Dole-Johnston for mammography standards and rules to protect 
children from poisoning.
  At the same time, amendments for exemptions for meat inspection and 
safe drinking water rules were rejected. Again, this debate raised the 
issue of whether each bill needs special exemptions to protect 
important pending health and safety rules. The simple answer is that 
Glenn-Chafee needs no special exemptions, Dole-Johnston does.
  First, both bills allow agencies to use the current APA good-cause 
exemption. This allows an agency to exempt a rule from notice and 
comment rulemaking whenever necessary to protect the public interest. 
Once exempted from notice and comment procedures, the rule is exempt 
from the cost benefit and other requirements of the regulatory reform 
legislation. As far as Glenn-Chafee is concerned, no other special 
exemptions are needed.
  Second, proponents of Dole-Johnston argued last week that their bill 
has an extra exemption for health and safety rules, and Glenn-Chafee 
does not have this exemption.
  This is a smoke screen. Again, Glenn-Chafee does not need an extra 
special exemption. The APA good cause exemption is enough. Dole-
Johnston needs an extra exemption because of its effective date and 
because of its onerous requirements.
  Proponents of Dole-Johnston argue that their bill solved people's 
concerns about USDA's proposed meat inspection rule and other pending 
rules, because it provided a 180-day--later extended to 1-year--
extension which is in now, and I emphasize the word ``extension'' for 
agencies to complete all required cost-benefit and related steps.
  Dole-Johnston supporters characterized this section as an emergency 
exemption and criticized Glenn-Chafee for not having a comparable 
section. This is just wrong. The real issue is not about emergencies. 
Again, the APA gives Glenn-Chafee an emergency exemption.
  The real issue involves pending rules. The USDA meat inspection rule, 
for example, is not an emergency rule. It has been under development 
for some time. It is, after all, a proposed revision of a set of 
inspection results that have been in effect, more or less, since 1906. 
It is not an emergency rule. Neither are EPA's cryptosporidium safe 
drinking water rules or FDA's mammography rules or the rules to protect 
children from poison.
  These health and safety rules are vulnerable under Dole-Johnston not 
because of the inadequacy of emergency exemption provisions, but 
because Dole-Johnston, No. 1, covers pending rules; No. 2, subjects 
those rules to onerous cost-benefit analysis and decisional criteria 
requirements.
  Dole-Johnston 1-year extension allows agencies to issue a rule, but 
then they still have to finish their cost before analysis in that year 
and then go back and revise the rule for the least cost test demands a 
different solution.
  Moreover, regardless of the cost-benefit test, Dole-Johnston's other 
requirements, like its APA revisions I discussed yesterday, still open 
up the rule to immediate challenge. These include new APA rulemaking 
publication requirements, a new APA substantial 

[[Page S 10211]]
support standard, the petition processes, and all the related avenues 
for judicial review. Even with the Johnston amendment, only to cover 
rules for which a notice of proposed rulemaking was published after 
April 1, 1995, pending rules already in the rulemaking pipeline will 
emerge and immediately be subject to all of the Dole-Johnston 
requirements.
  This threat to rules in the pipeline will make agencies stop 
rulemaking, reassess the sufficiency of their rulemaking record, and 
even reanalyze their proposed rule then modify and republish their 
proposed rule in order to address issues that would be raised under the 
new standards of Dole-Johnston.
  Let me make this very clear. The issue is not whether an agency has 
or could exempt a rule from notice and comment rulemaking. The issue is 
whether a new rule coming out of the pipeline will satisfy the new 
requirements of the new law. The answer is that Dole-Johnston's 
extension does not solve this problem.
  Unlike Dole-Johnston, Glenn-Chafee will jeopardize pending rule 
makings. First, the Glenn-Chafee effective date is 10 days after an 
enactment for proposed rules. Glenn-Chafee will only cover new rules 
proposed at least 6 months after enactment of the legislation. This 6-
month delay will allow agencies a reasonable amount of time to put into 
place the new tough procedures required by the law.
  Second, Glenn-Chafee requires an evaluation of costs and benefits. We 
also require a certification, whether the benefits justify the costs, 
and whether the rule will achieve its objectives in a more cost-
effective manner than the alternatives.
  While this necessities a cost-benefit analysis, it is in no way as 
prescriptive as Dole-Johnston's least cost decisional criteria, let 
alone Dole-Johnston's minimal impact Regulatory Flexibility Act 
requirements.
  The bottom line is the proponents of Glenn-Chafee are not afraid of 
having agencies comply with our cost-benefit requirements. They are 
tough, but they are also fair and they are workable. The Dole-Johnston 
1-year extension, on the other hand, is no solution. It is an 
extension, not an exemption. In fact, it simply introduced uncertainty.
  All interested parties will have to wait until the completion of the 
required cost before analysis and satisfaction of the least cost test 
to learn whether the rule will continue in effect or whether the agency 
will reenter rulemaking to revise the rule.
  This uncertainty and waste of resources serves no interest other than 
Government inefficiency and ineffectiveness. To summarize these 
exemption questions, No. 1, we may be able to agree on more general 
exemption to the definition of rule and major rule; No. 2, Glenn-Chafee 
does not need any special exemptions because of the APA's current good 
cause exemption. This protects emergency rules. Our future effective 
date also protects rules now in the pipeline. No. 3, the only bill that 
needs extra special exemptions is Dole-Johnston. Its immediate 
effective date will capture pending rules. Its onerous requirements 
will force many important rules back to the drawing board, wasting 
resources, causing delays and literally inviting litigation.
  Another matter that must be set straight involves some statements 
made yesterday regarding the risk assessment provisions in Glenn-
Chafee. Some have stated that the Glenn-Chafee substitute is weak 
because it requires risk assessments for only particular agencies and 
programs rather than requiring them for all agencies. This is not weak. 
It is common sense. It makes sense to make agencies that issue rules 
relating to health, safety, and the environment comply with these 
requirements. It does not make sense to cover every agency.
  For example, what if the health care financing administration wants 
to change Medicare eligibility requirements. That is a rule related to 
health. Under Dole-Johnston they may have to do a risk assessment. That 
does not make sense. I do not think so.
  All we are trying to do in the Glenn-Chafee substitute is to use some 
common sense. It does not make sense to cover all agencies, because not 
all agencies should do risk assessments.
  Glenn-Chafee risk assessment requirements are less prescriptive and 
better science than the Dole-Johnston substitute. We need to be careful 
when legislating science. I do not classify myself as a scientist. Many 
scientists have warned against writing language that is too 
prescriptive.
  For example, the Dole-Johnston substitute states that agencies must 
base each risk assessment only on the ``best reasonably available 
scientific data in scientific understanding.'' I ask, who determines 
what data are best in that requirement? What is best? Scientists say 
there is often wide dispute within the scientific community about what 
data are best, and it is common practice for agencies to use several 
different data sets.
  This language will not allow that to happen anymore. They use several 
different data sets, and then they use their best judgment. In other 
words, they come back to something that may be startling, they use 
common sense--and that is what we would require.
  The Dole-Johnston substitute also says that when conflicts among data 
occur, agencies must discuss, ``all relevant information including the 
likelihood of alternative interpretations of the data and emphasizing 
postulates that represent the most reasonable inferences * * *'' Again, 
who makes this determination of most reasonable? Proponents of S. 343 
are assuming there is only one right answer. But scientists tell us 
that risk assessment is a growing science with lots of uncertainty, and 
rarely, if ever, is there just one right answer.
  Let me also respond to what the Senator from Delaware said yesterday, 
that the Glenn-Chafee substitute goes against the National Academy of 
Sciences by preferring default assumptions to relevant data. That is 
just not right. It is wrong. I will read that again: It goes against 
the National Academy of Sciences by preferring the default assumption 
to relevant data.
  Default assumption means, basically, that we do not know, so we make 
a decision not knowing, not having as much data as we would like to 
have. That is a shorthand of what default assumptions means. But that 
is just not right. On the contrary, we explicitly state in the Glenn-
Chafee bill that, ``each agency shall use default assumptions when 
relevant and adequate scientific data and understanding are lacking.'' 
That does not say we prefer such assumptions to relevant data. We say 
use them when relevant data are not available.
  Moreover, unlike the Dole-Johnston bill, we require agencies to issue 
guidance to ``provide procedures for the refinement and replacement of 
policy-based default assumptions.'' In other words, we even provide in 
there for going out and doing our level best to get some relevant 
information, not just to go along with default assumptions, as was 
stated yesterday.
  So, I disagree with the Senator on that point. But I also want to add 
that we should not be in the business of telling the agencies to throw 
out all their assumptions, no matter what. That also would not be good 
science. What we try to do in the Glenn-Chafee bill is to make our risk 
language less prescriptive. We should not freeze the science, as many 
scientists fear would happen if we legislate risk assessment with no 
room for incorporating new understanding in how these assessments 
should be done.
  That brings me to a more general point. The Senator from Louisiana 
brought up the issue several times yesterday regarding EPA's own 
reports about its ability to do good science. First, I do not think it 
is really fair to imply that EPA has not done a good job. That is not 
just my opinion. The National Academy of Sciences, in their 1994 report 
called Science and Judgment In Risk Assessment reaffirmed EPA's 
approach to risk assessment, stating--and this is from the National 
Academy of Sciences: ``EPA's approach to assessing risks is 
fundamentally sound, despite often-heard criticism.''
  The report gave many recommendations for EPA to improve its policies 
and practices. As I understand it, EPA currently has programs underway 
to do just exactly that. In their March 1995 report, just a couple of 
months ago, called Setting Priorities, Getting Results: A New Direction 
For EPA, the National Academy of Public Administration, NAPA, concurred 
with the National Academy of Science findings. 

[[Page S 10212]]
Second, I think it is important to point out what else the NAPA study 
found, the National Academy of Public Administration. They state:

       Congress should not attempt to define ``best science'' or 
     ``best estimate'' in statutes. Congress should not attempt to 
     legislate specific risk assessment techniques, or to adjust 
     assumptions that underlie risk assessments. Such legislation 
     would almost certainly inhibit innovation and improvement in 
     risk assessments methods while constraining scientists from 
     using their judgment in appropriate ways.

  That is a very definitive statement from NAPA. And their report goes 
on to say, further:

       Congress should draft any risk legislation so as to 
     constrain the grounds on which risk analyses might be 
     challenged in court. Courts should ensure that regulators 
     follow reasonable procedures, but should not be put in the 
     position of resolving science policy questions such as the 
     definition of ``best science.''

  That is what we try to do in the Glenn-Chafee substitute. We get rid 
of words like ``best data'' or ``the most reasonable inference.'' We 
limit judicial review, and that is a far better approach.
  Another issue: What is and is not exempted from risk assessment 
requirements? The Dole-Johnston substitute exempts from the 
requirements actions to introduce a product into commerce. Should we 
not also exempt actions to remove a product from commerce? To put a 
product on the market, no risk assessment needs to be done. But to get 
a dangerous substance off the market, an agency has to do a full-blown 
risk assessment? That does not seem right.
  I mentioned a few moments ago, what if we had the thalidomide scare 
going on today? That would be held up from being taken off the market, 
I guess. And that would not make any sense at all.
  Finally, what about peer review? The Glenn-Chafee bill is actually 
tougher than the Dole-Johnston bill. We require peer review analysis of 
both cost-benefit analysis and risk assessment. We believe both should 
be reviewed. Both have lots of assumptions. Both should be scrubbed to 
make sure that agencies are making good decisions based on good 
information.
  The Dole-Johnston bill also exempts peer review from the Federal 
Advisory Committee Act, FACA. Last year, during the health care debate, 
my colleagues who support the Dole-Johnston substitute made a very big 
thing about making sure that such panels were done in sunshine and 
complied with FACA.
  Now they seem to have changed their minds, exempting all peer reviews 
from FACA. I do not think that is the way we should be conducting 
business. Glenn-Chafee does not exempt FACA, and that is the way we 
should do business.
  Mr. President, some of the comments that were made last year about 
FACA, when we were considering health reform--my colleague, Senator 
Mack, for instance, said:

       Secrecy in Government is not the American way. Secrecy in 
     Government has led to all sorts of abuses and denial of 
     freedom in other lands. We must keep our system of government 
     open and accountable to the citizens of our country for 
     public inspection and scrutiny. FACA requires that these 
     meetings should be meetings in public, published notice of 
     meetings in the Federal Register. Let the public know of the 
     agenda for those meetings. The act requires boards to permit 
     persons to obtain transcripts, appear and testify or file 
     statements, make a record, keep minutes, working papers, et 
     cetera, available. Keep detailed minutes, permit citizens to 
     purchase manuscripts and transcripts. Keep adequate financial 
     records. And the act also requires there should be a 2-year 
     time period for boards and commissions.

  Senator Craig, Senator Grassley, Senator Lott, I believe my colleague 
Senator Specter, Senator McConnell, and Senator Dole all spoke on 
behalf of keeping FACA and supported FACA and the importance of FACA.
  Senator Dole in particular said:

       And, plain and simple, the American public did not trust 
     the Clinton plan. They did not trust the secrecy in which it 
     was written. They did not trust the principle that Government 
     knows best. There is no reason why these boards should be 
     granted the power to meet in secrecy. Indeed, there is every 
     reason why they must meet in public.

  On and on, we have several pages of those here. I will not read all 
of them into the Record.
  But, Mr. President, I ask my colleagues to take a very hard look at 
the regulatory reform substitutes before them. I urge them to support 
the Glenn-Chafee bill. The Glenn-Chafee bill is a very tough reform 
bill. It also provides a balanced--repeat, a balanced--and a fair 
approach to reform. It will relieve regulatory burdens on businesses 
and individuals.
  I repeat that. It will relieve regulatory burdens on businesses and 
individuals. At the same time, it will also protect the health and 
safety and the environment of the American people. This is responsible 
legislation. I urge your consideration and support.
  Mr. President, in indicating the litigation that can occur with this 
legislation, OSHA has looked at this, and they asked a question, they 
postulated something here. The title of this is: ``S. 343, Endless 
Rounds of Litigation While Workers Wait For Protection.'' They say:
       Imagine: You are a metal finisher who works with a toxin 
     that causes acute pneumonitis, pulmonary edema, kidney 
     disease, and lung cancer. You are not alone. 500,000 other 
     men and women also work with this compound.
       Right now, OSHA can protect you from exposure to this 
     dangerous hazard by proving that: workers are exposed to a 
     significant risk, the proposed standard would substantially 
     reduce that risk, and the standard would be technologically 
     and economically feasible.
       Under S. 343, a protective rule to limit your exposure to 
     this compound could be invalidated because of the endless 
     opportunities for judicial review. For example, a petition 
     could:
       Claim that OSHA failed to consider substitute risks. (See 
     631(8); Sec. 632(a); Sec. 633(f)(3))
       Claim that OSHA failed to distinguish between risk 
     assessment and risk management. (Sec. 633(a)(2))
       Claim that OSHA failed to use only the best reasonably 
     available scientific data and scientific understanding. (Sec. 
     633(c)(1))
       Claim that OSHA failed to select data based on reasoned 
     analysis of the quality and relevance of the data. (Sec. 
     633(c)(2))
       Claim that OSHA failed to consider whether the data was 
     published in peer reviewed literature. (Sec. 633(c)(3))
       Claim that OSHA failed to discuss alternative 
     interpretations of that data that emphasize postulates that 
     represent the most reasonable inferences from the supporting 
     data. (Sec. 633(c)(5)(A))
       Claim that OSHA used a policy judgement when relevant 
     scientific data was available. (Sec. 633(d)(1))
       Claim that OSHA failed to explain adequately the extent to 
     which policy judgements were validated, or conflict with, 
     empirical data. (Sec. 633(d)(2)(A))
       Claim that OSHA failed to describe adequately reasonable 
     alternative policy judgements and the sensitivity of the 
     conclusions of the risk assessments to the alternatives. 
     (Sec. 633(d)(2)(C))
       Claim that OSHA inappropriately combined or compounded 
     multiple policy judgements. (Sec. 633(d)(2)(3))
       Claim that OSHA failed to express adequately the range and 
     distribution of risks and the corresponding exposure 
     scenarios, and failed to identify adequately the expected 
     risk to the general population and to more highly exposed or 
     sensitive populations. (Sec. 633(f)(1)(C))
       Claim that OSHA failed to describe adequately the 
     significant substitution risks of the rule. (Sec. 633(f)(3))
       Claim that OSHA's peer review panel was not balanced and 
     independent. (Sec. 633(g))
       Claim that OSHA's response to peer review comments were 
     inadequate. (Sec. 633(D)(3))
       Claim that OSHA failed to provide adequate opportunity for 
     public participation and comment. (Sec. 633(D)(3))
       Claim that OSHA did not properly determine that the 
     benefits of the rule justify the costs. (Sec. 624(b)(1))
       Claim that OSHA failed to identify all of the significant 
     adverse effects of the rule. (Sec. 621)
       Claim that OSHA failed to give regulated persons adequate 
     flexibility to respond to changes in general economic 
     conditions. (Sec. 621(6)(C))
       Claim that OSHA did not properly determine the least-cost 
     alternative of the reasonable alternatives. (Sec. 
     624(b)(3)(A))
       And more claims, and more claims, and more claims.
       Thankfully, OSHA addressed this dangerous compound in its 
     Cadmium standard. If S. 343 had been in place, however, this 
     protective standard could have been delayed for years, 
     leading to many work-related cases of cancer and kidney 
     disease that could otherwise have been avoided.
  So, Mr. President, this is just one little example of--what is that, 
25 or 30, I guess, examples after just a first-cut look at S. 343 that 
OSHA indicates they feel would provide grounds for litigation.
  Mr. President, I wished to make a reasonably complete statement, 
which I think I have done here this morning. We have combined several 
previous things that were brought up over the last couple of days as 
well as refuting some of the scare stories that have been applied. We 
still have basically six different areas in which we disagree. 

[[Page S 10213]]

  It is on major rules and how we deal with those; on the cost-benefit 
analysis versus the least-cost approach. We provide for review of 
current rules with no automatic sunset. We disagree with Dole-Johnston 
that provides a sunset after an extension period.
  Our bill is not a lawyer's dream. It does not provide nearly 
unlimited judicial review of everything from beginning to end. And our 
substitute does not create brand new petitions by private sources, by 
private persons or groups, that will just eat up agency resources and 
let special interests, not the agency or Congress, guide our 
priorities. And we do not have special interest provisions. We do not 
try to deal with things in this bill that deal with processes. We do 
not try to solve things like the Delaney clause on which separate 
legislation is being prepared by a different committee; toxics release 
inventory and things such as that.
  So I believe we have a better bill here, and I hope that when the 
vote occurs this afternoon after our noon break we will have enough 
votes to pass this. I know it is a squeaker. I know that we may lack 
the votes to do this. But I hope that after people look at the two 
bills side by side, they will realize we take the more reasoned 
approach to this and that this really is a superior bill.
  Mr. President, I yield the floor.
  Mr. KENNEDY. Mr. President, I support the Glenn-Chafee substitute to 
the regulatory reform bill, because it will achieve real reform without 
paralyzing the Government agencies that set health, safety, and 
environmental standards, and without wasting their resources on redtape 
that adds nothing to the wisdom of their decisions. It will lead to 
commonsense regulation, rather than excessive litigation and full 
employment for lawyers.
  It will give us cost-effective regulations, rather than always the 
cheapest, but not necessarily the most effective, rule. And it will 
allow for full public participation in regulatory decisionmaking, 
instead of back door, special interest processes that exclude the 
public.
  In each of these respects, our proposal is superior to the pending 
alternative. The Dole-Johnston alternative applies its cost-benefit 
analysis and risk assessment requirements to hundreds of rules each 
year that do not have enough of an impact on the economy to justify the 
expenditure.
  To require dozens of costly, time-consuming procedural steps for even 
minor rules is wasteful and counterproductive. At a time when we are 
cutting agency budgets and laying off tens of thousands of employees, 
forcing the agencies to comply with these procedures is simply a way to 
prevent them from doing their real work--protecting the American public 
from significant health and safety threats.
  Some say that we rely too much on the Government and that in doing so 
we risk our freedom.
  But none of us as individuals can protect ourselves from the 
destruction of the ozone layer, from deadly bacteria in our food or 
drinking water, or from HIV when we get a blood transfusion. The 
Government must be active in these areas, and it must have the 
resources to do for all of us what we cannot do for ourselves. The 
Dole-Johnston proposal will cost at least $1.3 billion a year, but it 
does not provide any new funding to pay for these costs. This $1.3 
billion is money that will not be available for enforcement and 
administration of essential laws and regulations.
  The Dole-Johnston alternative relies on private lawsuits to be what 
some call the hammer to make agencies comply with the law. But as 
Professor Peter L. Strauss of Columbia Law School testified before the 
Judiciary Committee,

       Permitting judicial review of the process hands over to 
     interested private parties weapons with which they can 
     cheaply and unaccountably delay government action and make it 
     more expensive to accomplish what government should be doing.

  Our alternative, by contrast, leaves the review of rules more in the 
hands of Congress.
  We can block any regulation from taking effect by invoking the 
legislative veto provision, which the Senate has already passed in 
separate legislation. That is a better answer than private litigation.
  Congress gives agencies their power to regulate, and we are 
ultimately responsible for what they do. If a rule is unreasonably 
burdensome and costly, if it is based on bad science, Congress has the 
power and will have the opportunity under our alternative to intervene 
and block it.
  We do not need to depend on special interest lawyers, and we should 
not depend on them, to ensure that Federal regulations make sense.
  Senator Hatch has repeatedly cited examples of bad regulation from 
Philip K. Howard's book ``The Death of Common Sense.'' But Mr. Howard's 
testimony is enlightening, because he favors limits on judicial review 
like those in our proposal. Mr. Howard testified that, ``The main 
control over agencies should be oversight by Congress, not endless 
procedure or appeals to courts over procedural nitpicks.''
  I also prefer the Glenn-Chafee substitute because the alternative 
creates special opportunities for businesses to escape regulation 
without any public involvement or notice. Section 629 of the Dole-
Johnston alternative allows any regulated business to petition for a 
waiver from any major rule. The petition must be granted if the 
business shows that it is reasonably likely that the business can 
achieve the goal without complying with the rule.
  In other words, if the new safe meat handling rules were in effect, 
and a meat packer were able to convince USDA that ``there is a 
reasonable likelihood'' that it could keep its meat free of E. coli 
without doing any sampling for bacteria, USDA would have to grant its 
petition.
  The Dole-Johnston alternative gives no one else a chance to question 
or challenge the company's petition, to cross-examine its scientists, 
or even to know that the petition is pending. A secret relationship 
between the agency and the company is created. And if the agency grants 
the petition, no one can challenge the decision in court. Section 
629(e) provides that ``in no event shall agency action taken pursuant 
to this section be subject to judicial review.'' The public interest is 
totally ignored.
  When, as here, the issue is agency action to exempt a business from 
regulation, the Dole-Johnston alternative rejects any interest in risk 
assessment and good science. The agency is given 180 days to respond to 
the company's petition, which may not be sufficient time to investigate 
the issue fully.
  The agency is not required to conduct a risk assessment, or subject 
its decision on waiving the rule to peer review. The Dole-Johnston 
alternative operates on the assumption that agencies can be trusted to 
make the right decision in the case of waiving a rule--but not in 
issuing the rule.
  I object to this back door way to let businesses escape regulations 
that are designed to protect the public. At a minimum, there must be 
some opportunity for public involvement and comment.
  I also question whether a process like this can be justified if it 
does not require peer review of the agency's decision, to ensure that 
there is not collusion. The Glenn-Chafee proposal does not provide for 
this kind of petition at all, and it is, therefore, superior to the 
Dole-Johnston alternative. I am also pleased that the Glenn-Chafee 
amendment does not include the special interest fixes or the Dole-
Johnston alternative. For example, our proposal does not undermine the 
Delaney clause, which prohibits the approval of cancer-causing food 
additives.
  We all agree on the need for Delaney reform, but it is a complex, 
technical subject that requires careful consideration by the committees 
of jurisdiction. The approach in the Dole-Johnston alternative is too 
simplistic and provides insufficient protection to infants and 
children, whose special diets leave them especially vulnerable to food-
borne carcinogens.
  Finally, the Dole-Johnston alternative continues to be a supermandate 
that requires agencies to choose the cheapest alternative in any case 
where the benefits to health, safety or the environment are 
quantifiable. Suppose that OSHA finds that requiring grain elevators to 
continuously vacuum up dust could save 10 lives a year by preventing 
dust explosions, but would be more expensive than have employees sweep 
up once a shift.
  OSHA could not require the grain elevator to install dust control 
equipment, or to maintain a consistently 

[[Page S 10214]]
low ``action level'' of dust, because it is not the least cost 
alternative.
  Our proposal, on the other hand, is not a supermandate and does not 
impose any new decision criteria. OSHA would be able to choose the more 
protective alternative, as it did under the Reagan administration, 
because that is the alternative that better accomplishes the goal of 
the statute--providing a safe workplace.
  The Nation has made tremendous progress in the last quarter of a 
century toward cleaning up the environment, protecting endangered 
species, ensuring the safety of food and drugs, and improving health 
and safety in the workplace. We must not destroy this progress in the 
guise of reforming the laws and regulatory system that made it 
possible. The Glenn-Chafee substitute will help us streamline the 
regulatory process and make it more cost effective. It will not throw 
the baby out with the bath water.
  I urge the Senate to support the Glenn-Chafee substitute.
  Mr. BIDEN. Mr. President, I want to reform our regulatory process.
  No one can deny that we need to write smarter, clearer, more 
effective, and more flexible Federal regulations. The question before 
us is not whether to reform our regulations. The question is how to 
reform them.
  I believe that the most balanced answer to this question is in S. 
1001, that Senators Glenn, Chafee, and I, along with other of our 
colleagues from both sides of the aisle, offer here today.
  And I am afraid that S. 343, the Dole-Johnston bill, remains an 
unbalanced, costly, confrontational approach, that fails to meet its 
own reform criteria, and that will fail to protect the public health 
and safety--the general welfare that it is our Constitutional duty to 
protect.
  Mr. President, the days are long gone when Americans grew their own 
food, made their own tools, stayed pretty close to home, and saw most 
disease as an act of God.
  Now we buy food from all over the world, packaged and processed with 
unpronounceable chemicals, even irradiation.
  We travel at higher speeds over longer distances, in larger and 
larger aircraft, and in automobiles that are as much electronic as they 
are mechanical.
  Mr. President, as much as we may long for a simpler, more self-
sufficient time, we must face the costs--in new risks to our health and 
safety--that come with the benefits of our rapidly evolving economy.
  It is one thing to recognize those costs, Mr. President, and quite 
another to know what to do about them. What is the best way to protect 
against the new threats to our safety and health that come from the way 
we now live?
  That is the heart of the question before us in this debate on 
regulatory reform.
  Mr. President, the issue before us today has been a generation in the 
making. Many of the safety and health regulations now on the books had 
their origins 25 to 30 years ago, when we began to face up to the real 
costs--in injury, disease, and even death--from unregulated 
manufacturing processes and products.
  By the end of the 1960's and the beginning of the 1970's, we came to 
realize that consumer choice alone--the guiding principle of the free 
market--was not enough to protect us from poorly designed, inadequately 
researched, or criminally negligent products and processes.
  Our private enterprise economy functions so well because it is based 
on individual initiative and self-interest. Economic competition among 
free individuals drives the inventiveness that gives us new products, 
new technologies--progress that has given us the most powerful economy 
in the history of the world.
  But those competitive individuals all face the same need to keep 
their costs lower than their competitors--each individual must find 
ways to avoid paying for anything that competitors get for free.
  The unfortunate effect in this process is that what we all have in 
common--the need for clean water, clean air, clean food, safe working 
conditions, products that are safe and effective--those things we have 
in common are not necessarily protected in each business's calculations 
of economic efficiency.
  At the same time, with the rapid technological changes brought by our 
free enterprise economy, we find ourselves more and more dependent on 
products whose safety and effectiveness we cannot evaluate ourselves--
except, perhaps by experiencing the tragic consequences of thalidomide 
or DDT, or increasing automobile injuries and deaths.
  So we need some way to make sure we can take care of those things we 
have in common--the common good.
  A generation ago, the public began to demand cleaner air, safer food, 
water, and transportation. To accomplish those goals, Congress has 
passed laws, and agencies have written the regulations to put the goals 
of those laws into effect.
  In era of skepticism, cynicism, and downright hostility toward 
government, these are the most popular federal laws now on the books, 
Mr. President.
  Everywhere I travel in my own State of Delaware, and in other States 
around our country, people of every political persuasion tell that they 
continue to support government policies that keep our food and water 
safe and clean, that assure we can travel in safety, and that protect 
the environment.
  At the same time, these are also some of the most frustrating, 
demanding, confusing regulations that our small businesses and property 
owners must face. Reform must balance the demands of the public for 
continued safety with the needs of those businessmen and women who seek 
reasonable relief.
  Still, taken as a whole, in terms of their impact on the economy, 
these regulations are not, Mr. President, the unmitigated disaster some 
would have us believe.
  Our food, our water, our prescription drugs, our highways and 
airways--even our children's clothes and toys--are safer today because 
of Federal regulations.
  But at what cost, ask our colleagues? They tell us that our country 
is being strangled by regulations, jobs are being lost, that the burden 
of regulations is sinking our economy.
  Now, Mr. President, a couple of days ago on the floor of the Senate I 
related a story from my own State of Delaware about regulations run 
amok, about a rule that flies in the face of common sense, a rule that 
cost a good friend of mine an outrageous amount of money simply to 
settle a claim out of court.
  I know as well as anyone here that these horror stories are real, and 
that it is high time we undertook serious reform of the ways we write 
Federal rules and regulations.
  But our job here is to weigh the full body of evidence, and to put 
the individual cases that are so frustrating and infuriating into 
context, and correct them individually. When I told that story, I said 
I would return to the floor to discuss the real cost of regulations, 
the real costs of these rules to our economy.
  Fortunately, Mr. President, the big picture is not what some would 
have us believe. The fact is that the burden of regulation a share of 
our economy has not exploded as some of my colleagues have stated here 
on the floor.
  As a matter of fact, the share of regulatory costs in our economy has 
actually gone down, as documented by an analysis done last month by the 
GAO. From 1977 to this year, the regulatory cost have shrunk by 11 
percent--from about 4.5 percent of GDP to about 4 percent of GDP.
  There is nothing in the facts to support the claim that the cost of 
regulations has exploded, nothing to justify putting hurdles, even 
landmines, in front of every regulation now on the books, and every 
regulation now in the works.
  Mr. President, many of the stories we have heard here in recent 
days--stories of regulators' excesses and abuses of power--are more 
folklore than fact. But if even these horror stories were true, would 
that justify putting the health and safety of the American public at 
risk? Would the risks justify the benefits? Would it not be better to 
fix the particular abuses, rather than take the Dole approach?
  Let us look at this another way, Mr. President. Many of my colleagues 
insist on using a grossly inflated estimate of the total cost of 
regulations--$562 billion a year, by one well-publicized estimate. 

[[Page S 10215]]

  But that number includes costs like farm subsidies, that transfer 
funds from one sector of the economy to another--they add up to zero on 
the national accounts. And they also include the costs of complying 
with the IRS--a burden we all resent, but one that the Dole-Johnston 
bill does not touch. The IRS is not covered by regulatory reform--that 
is an issue for tax reform, a topic for another day.
  So the real costs of complying with regulations is actually more like 
$228 billion a year, according the study cited in the GAO report I have 
here today--half of what some would have us believe.
  But what do we get for those costs? Is this just money down the 
drain? Not according to the Center for Risk Analysis at the Harvard 
School of Public Health. Its report from March of this year cites one 
study--from the peer-reviewed Yale Journal on Regulation--that sets the 
benefits of health, safety, and environmental regulations at $200 
billion a year.
  A little quick math suggests that we are left with a total NET cost 
of regulations to the economy--if we take reasonable account of 
benefits that we can measure in dollars and cents, as well as the 
costs--of about $28 billion a year.
  That $228 billion a year in regulatory costs means about $912 dollars 
a year for everyone in the country, or about $2.50 a day, for all of 
the health, safety, and environmental protection we enjoy.
  If we throw in some of the benefits that cannot be measured in 
dollars and cents--a little extra peace of mind, some fairness in the 
distribution of benefits, deference to principles like federalism--that 
seems like a pretty fair deal.
  Some might call it a bargain--clean water, safe food, secure 
transportation, and a few basic American values thrown in--for $2.50 a 
day.
  Like most of the numbers we have heard in this debate, of course, 
these are estimates, extrapolations, and a reflection of how hard it is 
to measure these things. As much as we need to know the hard facts 
about the costs and benefits of regulations, we are still learning how 
to count them.
  But that small number makes sense when we look at the effect of 
regulations on the growth of our economy, Mr. President. It is hard to 
find evidence that regulations are dragging us down. Throughout the 
entire post-War period to the present, Mr. President, before the 
enactment of significant environmental, health, and safety regulations 
and after, our economy has continued to grow at a remarkably steady 
pace.
  When you look at the pattern of growth that our economy has been able 
to sustain over this period, Mr. President, it is impossible to detect 
a point at which regulations become a burden.
  Between 1980 and 1994, our industrial output rose more than 50 
percent. In the past 3 years, it has increased 15 percent. Our output 
is now twice as high as it was in 1970, and five times as high as 1950.
  Our productivity has risen about 3 percent per year in the past 
decade. A recent comprehensive survey of the impact of environmental 
regulations--on those industries like chemicals, petroleum, and paper 
that have had the most to clean up--showed little or no correlation 
between regulations and profits, competitiveness, or productivity.
  Where is the evidence that the cost of regulations has exploded?
  Where is the evidence that the cost of regulations has become a major 
burden on the growth of the economy?
  It simply is not there, Mr. President.
  In fact, there is persuasive evidence that regulation has generated 
positive overall effects for our economy, by spurring innovations and 
economies.
  We know that there are positive economic effects from lowering costly 
threats to public health and safety, threats that take their toll in 
medical bills, time lost on the jobs, and so forth. By making our 
citizens healthier and safer, regulations make our economy more 
efficient, because we do not waste scarce resources paying for 
preventable illness and injury.
  But in addition to preventing wasteful expenditures--and preventing 
unnecessary human suffering--regulations can have positive effects on 
economic innovation.
  Here is an example from that recent Business Week article: When OSHA 
issued a new standard for worker exposure to formaldehyde, costs to the 
industry were estimated at $10 billion. But when the affected 
industries changed the way they operated, the costs were negligible, 
and the changes improved their international competitiveness. The 
conclusion? The regulations were a large net plus for the industry and 
the country.
  Let us think about this for a minute, Mr. President. Does anyone here 
want to argue that an economy that wastes less--that sends less of its 
waste products into the environment in which its citizens live--is less 
efficient than an economy that spews tons of waste into the air and 
water?
  Logic does not support the idea that these regulations will make us 
less competitive--as a nation, over the long run--and the data do not 
support it, either.
  So let us not let exaggerated costs and horror stories of regulatory 
excess stampede us into a wholesale attack on regulations that, by and 
large, are doing what we want them to do.
  But there is a real problem, Mr. President, one that is at the heart 
of the movement to reform regulations, a movement we should all 
support.
  That problem is the lack of flexibility and the lack of openness in 
rule-making and enforcement of regulations. And that problem can be 
traced to the arrogance and insensitivity of the public officials 
charged with writing and enforcing many of our regulations.
  It is fundamental, Mr. President--power corrupts. From the comically 
officious church parking lot attendant on Sunday morning to the most 
powerful public officials, people's heads swell when they are given 
power over others. Our regulatory agencies are not immune from this law 
of human nature.
  Mr. President, the abuse of private power by polluters, unsafe 
employers, and sellers of dangerous products--that abuse of private 
power is the reason we need regulations.
  And the abuse of public power by arrogant public officials is the 
reason we need regulatory reform.
  It should be our job to fight both forms of abuse, not add momentum 
to that pendulum that swings from one extreme to the other.
  Which of the two bills before us is more likely to remedy this 
problem and still protect the public interest?
  I am convinced that the Glenn-Chafee approach is the more balanced, 
effective way to restore common sense to the way we write our 
regulations, without putting punitive layers of paperwork and 
procedures in the way of better regulations than we have today.
  This approach requires a cost-benefit analysis and a risk assessment 
for public safety, health, and environmental regulations that have a 
major impact--$100 million--on the economy.
  It backs those up with specific requirements for peer review, 
congressional review, and executive oversight of each agency's rule 
writing. And the courts will examine each agency's compliance with the 
scientific and economic justifications for each rule.
  It requires that agencies include flexible, market-based alternatives 
in their considerations, and makes them show how the rule they choose 
matches up to those alternative for cost-effectiveness.
  The Glenn-Chafee substitute calls for a thorough-going review of 
regulations now on the books, and sets up a procedure to assure that we 
have a sensible way to rank the risks we face--from contaminated air, 
water, or food, or from unsafe aircraft, cars, or toys. We will attack 
the worst problems first, the best way to allocate our scarce 
resources.
  Mr. President, the Glenn-Chafee substitute is tough, thoughtful 
reform.
  Ironically, the Dole-Johnston bill adds to the costs of regulation by 
adding inflexible, prescriptive procedures to the process, subject to 
petition and judicial review requirements that could keep better 
rules--replacing the bad ones on the books today--from seeing the light 
of day.
  But most significantly, it forces agencies to write every rule 
according to fixed criteria--they must choose the least cost 
alternative among all the possible versions. But the cheapest rule may 
not be the best--it depends on the circumstances, it requires more 
flexibility. 

[[Page S 10216]]

  The cheapest broom may get the job done in most cases, but when you 
need an operation, maybe you would consider paying a little more for 
the best doctor you can afford. It depends on the problem you are 
trying to solve.
  Flexibility is not what the Dole-Johnston bill provides. Do we really 
think that public officials will become more accommodating, more 
concerned with differing circumstances, if they must, by law, choose 
the rule that they can defend in court as the cheapest way to get the 
job done?
  Maybe they could get the public more benefits for a little more 
cost--maybe they could write a rule that is more cost-effective. But 
not under the Dole-Johnston bill.
  Under the Dole-Johnston bill, agencies will practice defensive rule 
writing--to conform to whatever the latest case law says is the 
cheapest way to do things. They are not encouraged to apply a variety 
of criteria--maybe in some cases, the cheapest rule is the best; maybe 
we want to maximize the benefits in safety and health; maybe we want 
the rule with the most net benefits--the spread between costs and 
benefits.
  But the Dole-Johnston bill is not concerned with flexibility--it 
mandates that every rule fit into the same box--the least cost box.
  Furthermore, the Dole-Johnston bill will add bureaucracy and 
litigation, instead of reducing it. For example, lawyers will be able 
to challenge rules--or prevent them from going into effect--by raising 
any of a number of new issues which they cannot now raise.
  This will keep Washington lawyers busy, and will keep agency lawyers 
busy. That means everyone will be in court--instead of out in the 
field, enforcing the new regulations. And in an effort to avoid 
lawsuits in the future, agencies will practice defensive rulemaking--
being overly cautious, spending enormous amounts of money and becoming 
even more bureaucratic.
  This is not reform. It makes the regulatory system more bureaucratic, 
not less. It results in more litigation and less policy. It makes it 
harder for the Government to respond to legitimate needs.
  Furthermore, the bill includes new cumbersome and complicated 
processes by which industry and special interests can petition to have 
existing rules thrown out. There are numerous of these petition 
processes in the Dole-Johnston bill--and each of them can be brought 
into court if the agency denies the petition. That explosion in 
litigation simply is not what regulatory reform is about.
  The effect of these and other procedural hurdles would be either to 
require larger bureaucracies, with bigger budgets--or, more likely 
under current conditions--to make the process of getting out new, 
better rules virtually endless.
  If advocates of this gridlock think that hog-tying the bureaucracies 
will reduce the public's demand for safety, health, and environmental 
protection, they have seriously misread public opinion. The demand for 
these protections will collide with the cumbersome process they have 
devised, adding to the frustration with government--and to the 
hostility and suspicion of the special interests who are served by 
delay and weakening of those protections.
  Regulatory reform should be the way to make the system more flexible, 
more open, but S. 343--the Dole-Johnston bill--would establish a more 
costly, less flexible rule writing process.
  Mr. President, S. 343 has been written to be just a bad mirror image 
of the process some imagine we have today. It will tie up agencies in 
new procedures, adding to the costs and uncertainty of the regulatory 
process, the same complaints many citizens have rightfully leveled 
against the current process.
  It would waste resources by piling requirements on rulemakers that 
add nothing to the public safety and health, and add nothing to the 
effectiveness of the regulatory process, and will do nothing to make 
agencies more accommodating to the real needs of individuals, firms, 
and communities.
  Now I know that some of my colleagues here today, and certainly some 
of those business men and women who feel themselves most aggrieved by 
current regulations view the prospect of frustrating a few Federal 
bureaucrats eagerly.
  Some may even see regulatory reform as pay back time: a chance to 
dump on Federal agencies some of the burdens they have felt.
  Mr. President, I ask those who may feel that way to consider how they 
will feel if the effect on the regulatory process is to make it more 
complex, more time-consuming, more uncertain. Will those who feel most 
aggrieved by the current system be better served if they succeed in 
their attempt at retribution?
  The fact is, Mr. President, that the big corporations whose 
contributions have bought them access to the legislative process--those 
corporations have always been able to make the system work. They play 
the regulatory system like a harp, and they have helped to write the 
new rules of the game, a game in which their deep pockets and hefty 
legal staffs will carry a lot of weight.
  But what about the guy who cannot sail or fish on the Delaware River, 
or cannot take his family to the beach, when our waters are not 
protected? What about the family with crippling health care costs from 
their child's respiratory problems when our air is not clean?
  What of the small businesswoman who just wanted a fair shake and a 
straight answer, who is told by OSHA or the EPA, ``Sorry, that rule has 
been held up by another petition--we cannot tell you how to bring your 
business into compliance?''
  Mr. President, those of us who are rightfully proud of the 
accomplishments of public safety and health regulations should be among 
the first to want them to work efficiently and effectively, without 
waste of taxpayers' dollars and without antagonizing the citizens who 
operate the businesses and who own the property that are the subjects 
of so many of these regulations.
  Any waste in the process, any wasted effort and dollars by those who 
comply with these regulations, is a waste of resources that could be 
used to create another job--or to improve the quality of our air and 
water, or increase the safety of our airways and highways.
  The tough choices before us in the next few years will leave little 
room for excess in any programs. Those of us who support the Glenn-
Chafee amendment recognize our continuing responsibility to promote the 
general welfare; reform is essential to wringing every dime's worth of 
protection out of every regulation.
  We cannot maintain a regulatory process that thoughtlessly pushes the 
cost of regulation onto the people whose businesses create the 
products--and the jobs--we all depend on. We must not have a regulatory 
process that generates increasing resentment and frustration on the 
part of the businessmen and women whose behavior--and balance sheets--
must change to put our regulations into effect.
  Mr. President, all Americans benefit from regulations that work well, 
and that work efficiently. And we are all poorer if our businesses 
divert resources away from productive economic activity for regulations 
that are not well designed.
  But demonizing Federal regulations--legislating by anecdote, where 
often imaginary excesses are inflated into an anti-Government scenario 
of bureaucrats run amok--is surely not the way to accomplish real 
regulatory reform.
  Now, Mr. President, I am impressed by the extent of the changes in S. 
343 since it was reported out of the Judiciary Committee. The sheer 
volume of revisions confirms, I believe, the minority view back then 
that it was seriously flawed and not ready for consideration by the 
full Senate.
  The changes also reflect the good work of many of my colleagues, 
including Senator Roth and Senator Johnston, who have lent their 
expertise to remove some of the worst elements of the earlier version 
of S. 343. They have spent hours and hours over recent weeks debating 
and revising the details of what we all agree is a very complex, arcane 
bill.
  But the volume of changes also has its downside, Mr. President. It 
means that this bill, in its current form, has never been the subject 
of committee hearings or debate. It has remained a moving target, 
defying any attempt to analyze the cumulative implications of its many 
interrelated subchapters and provisions. 

[[Page S 10217]]

  In the process, it has become an amalgam of innumerable drafts and 
revisions, last-minute concessions, and internal inconsistencies.
  The Dole bill began as a proposal that would frustrate, not promote 
reform, by adding paperwork, delays, and costs to a system already 
swamped by procedures. The many changes that have been adopted in 
recent weeks have blunted, but not deflected, its original intent.
  That is why I am pleased to support the efforts of Senator Glenn, 
Senator Chafee, and many others, to revive a superior approach to 
legislative reform, one that was subject to extensive hearings, and 
that enjoyed a unanimous, bipartisan vote from the Governmental Affairs 
Committee.
  I am pleased to be an original cosponsor of this alternative, that is 
a tough, considered approach to regulatory reform, that raises the 
standards for the regulations that will be written from now on, and 
that provides a rational program to assure all earlier regulations meet 
these new, higher standards.
  Mr. ROTH addressed the Chair.
  The PRESIDING OFFICER (Mr. Ashcroft). The Senator from Delaware.
  Mr. ROTH. Mr. President, I rise to call upon my colleagues to take a 
leadership role to change the status quo, to reduce the cumulative 
regulatory burden that costs the average American family $6,000 per 
year, and to ensure that we will have smarter, more cost-effective 
regulation that will benefit us all.
  I rise to repeat once again that meaningful regulatory reform is 
critical to ensuring that we reduce the regulatory burden while still 
ensuring strong protections for health, safety, and the environment. 
The answer to this problem is legislation that will make a difference. 
Make no mistake about it, the answer to this problem is the Dole-
Johnston compromise, not the Glenn substitute.
  Mr. President, there is no argument but what the regulatory process 
is broken. Virtually every authority who has studied the regulatory 
process--from Justice Stephen Breyer to the Carnegie Commission, from 
Vice President Gore to the Harvard Center for Risk Analysis, from 
scores of scholars to dozens of think tanks--agrees that the regulatory 
process needs to be reformed. And this problem is so undeniable that I 
do not believe any of my colleagues would publicly deny that there is a 
problem. But the question remains, who wants to do something about this 
problem that none of us can deny?
  I submit that the Dole-Johnston compromise, S. 343, will do something 
about the problem. It will effect meaningful, responsible regulatory 
reform. And I regret to say that the Glenn substitute will not.
  We all agree that we do not want to be where we are with Government 
regulation. We will admit that we need to move back to reform old rules 
and move ahead to be sure future rules make sense.
  Mr. President, allow me to draw an analogy. You could compare S. 343 
and the Glenn substitute to automobiles that purport to allow us to 
take this journey which we all say we want to make.
  As I detailed yesterday, if you look at these two vehicles, they look 
similar at first blush. From a distance, they both have provisions for 
cost-benefit analysis, review of existing rules, risk assessment, 
comparative risk analysis, market mechanisms and performance standards, 
reform of the Regulatory Flexibility Act, congressional review of 
rules, and regulatory accounting.
  When you try to start the Glenn vehicle, you find it does not go 
backward. It will not ensure that old, irrational rules already on the 
books are reviewed and reformed. You will find that the Glenn vehicle 
does not go forward. It does not have a focused cost-benefit test which 
will ensure that new rules make sense, that their benefits justify 
their costs. When you look under the hood of the Glenn vehicle, you 
will find to your surprise that it has no engine. The judicial review 
provision is so weak that an agency can do a very sloppy job of doing a 
cost-benefit analysis or other analysis and then does not have to act 
upon that analysis, so it makes a difference on the rule. And there is 
little anyone can do about it.
  Now, what good is this--a car that cannot go in reverse, cannot go 
forward, and has no engine? That vehicle will get you nowhere. That is 
the Glenn substitute. If we are to have that, we may as well not have a 
regulatory reform statute because the Glenn substitute represents 
nothing but the status quo.
  Mr. President, I need to take a little time to dispel a very serious 
misconception that some people have about the Glenn substitute, and 
that is it is not--it is not--the Roth bill. The Glenn substitute is 
not by a long shot S. 291, the bill that I introduced in January and 
that was reported unanimously out of the Governmental Affairs 
Committee.
  While S. 291 was itself a compromise and was originally adopted by 
Senator Glenn as S. 1001, he has now taken steps to fatally weaken it.
  Let me briefly highlight a few major departures. First, the Glenn 
substitute seriously weakens the lookback provision that was in the 
Roth bill. The Roth bill required agencies to review all major rules in 
a 10-year period or be subject to sunset or termination.
  The revised Glenn substitute now makes the review of rules a purely 
voluntary undertaking. There are no firm requirements about the number 
of rules to be reviewed or which rules to review. In other words, it is 
a matter up to the sole discretion of the agency. There are no 
requirements about the number of rules, if any, that have to be 
reviewed.
  A second major change. Senator Glenn's substitute guts the judicial 
review provision that was in the Roth 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, and that meant 
that the court should focus on the cost-benefit analysis in determining 
whether the rule was arbitrary and capricious.
  The Glenn substitute strikes that language. That weakens the whole 
bill. That means the Glenn vehicle has no engine. The Glenn substitute 
does adopt cost-benefit language that was in the Roth bill. But without 
any meaningful judicial review, the cost-benefit test does not mean 
much at all. For a reviewing court, the analysis is just another piece 
of paper among the thousands of pieces of paper in the rulemaking 
record.
  The Glenn substitute asks the agency to publish a determination 
whether the benefits justify the costs. But the Glenn substitute does 
not push regulators to issue rules whose benefits actually do justify 
their costs. I have always believed we need a stronger cost-benefit 
test.
  In effect, the Glenn substitute merely asks the agency to do a cost-
benefit analysis. However, the agency can do a poor analysis and, worse 
still, does not have to act upon the analysis. In other words, the 
cost-benefit analysis need not make a difference in the rule. The rule 
can still be inefficient and ineffective. This is not the Roth bill. 
This is not what I want, and it is not what the American people want.
  Mr. President, the Dole-Johnston compromise is the proper vehicle for 
regulatory reform. It will allow us to go back to review old rules on 
the books. It will allow us to go forward and to ensure, as a general 
rule, new rules will have benefits that justify their costs. It has an 
engine to ensure we will get where we want. And I urge my colleagues 
who want real regulatory reform to set aside partisan politics and join 
me in supporting the Dole-Johnston compromise.
  The truth is, if you compare the Dole bill and the Glenn bill section 
by section, they, at first blush, look a lot alike. At bottom, there 
are some very key, important differences. 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.
  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 

[[Page S 10218]]
the cost-benefit analysis. The agency only has to publish a 
determination whether the benefits of a rule will justify its cost and 
whether the regulation is cost effective. But the Glenn bill does not 
push regulators to issue rules whose benefits actually do justify their 
costs. I have always believed that an effective regulatory reform bill 
should have a stronger cost-benefit test.
  Some of my colleagues have complained about the least cost component 
of the decisional criteria. Many of us have been willing and have 
sought to negotiate language to substitute for or remedy some of the 
concerns as expressed by my colleague, but I want now to return to a 
second point about regulatory reform.
  The PRESIDING OFFICER. The Chair advises the Senator that under a 
previous order, the Senate was to recess at 12:30 and not to reconvene 
until 2:15.
  Mr. GLENN. Mr. President, I ask unanimous consent----
  The PRESIDING OFFICER. The Senator from Delaware has the floor.


                      Extension of Time for Recess

  Mr. ROTH. Mr. President, I ask unanimous consent that the recess 
ordered for 12:30 p.m. today be delayed in order that Senator Daschle 
be recognized to speak for a period of not more than 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GLENN. Mr. President, I ask unanimous consent that Senator Roth 
be permitted to speak until the minority leader reaches the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROTH. I thank the distinguished Senator.
  Mr. President, as I was saying, 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, and 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 standard, no meaningful 
deadline.
  The Glenn substitute simply asks that every 5 years, the agency 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 any of the 
deadlines for completing the review of any rules.
  Mr. GLENN. Will the Senator yield for a question?
  Mr. ROTH. My time is limited, so I want to continue.
  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 most any law Congress passed. S. 343 
strikes a balance by allowing limited but effective judicial review.
  S. 343 carves away from the standard level of judicial review 
provided by the Administrative Procedures 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.
  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 agencies 
sufficiently complied with the cost-benefit analysis and risk 
assessment requirements of S. 343 so that the rule passes muster upon 
the arbitrary and capricious standard.
  The arbitrary and capricious standard is very deferential to the 
agency. A court would uphold the rule unless the 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, the language of the legislation has been so weakened that now 
substantial portions of this bill are irrelevant to the extent that a 
court could not require the agency to perform the cost-benefit 
analysis, the 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.
  Now, Senator Glenn has claimed that his bill is essentially the same 
as S. 291 which, of course, is the regulatory reform bill I introduced 
in January, which did receive bipartisan support of the Committee on 
Governmental Affairs. I say, as I stated earlier, that while the 
original Glenn bill was similar to the Roth bill, the latest version of 
the Glenn bill seriously differs from the Roth bill. Many of the 
provisions have been weakened. The Roth bill and the original Glenn 
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 lacked any firm requirement 
about the number of bills to be reviewed.
  Now, Mr. President, I think that is a very important and very 
significant change. As a matter of fact, as I said earlier, anyone who 
has reviewed the regulatory rules on the books have agreed that many of 
them are, today, irrelevant, cumbersome, and not equipped to do the job 
that they were intended. These studies have been made by distinguished 
organizations, including a group at Harvard. Our former colleague, and 
now Vice President Gore, has stated on a number of occasions, as part 
of his program to reinvent Government, that many regulations are 
undesirable. So I think it is a very, very serious mistake the way the 
Glenn substitute has weakened the lookback provisions of this 
legislation.
  As I said, my original bill required all rules to be reviewed in a 
10-year period, subject to a 5-year extension, and if a rule were not 
reviewed in that period of time, then, of course, the rule would be 
terminated. Under the revised Glenn substitute, that is not the case. 
It leaves everything entirely in the discretion of the agency head. An 
agency head could provide a 5-year schedule of reviewing rules that 
includes many appropriate rules. On the other hand, he or she could 
include one, zero, or five, as there are no requirements in the current 
version of the Glenn legislation that rules be reviewed.
  As I say, I think this is a serious mistake. Worse still, Senator 
Glenn has weakened the judicial review provision that was in the Roth 
bill and that originally appeared in the Glenn bill. Here I have 
reference to section 623(E) of the Roth bill, the original bill, which 
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.
  This is a matter that is particularly bothersome, because what the 
proposed legislation provides is that an agency will make a cost-
benefit analysis and, where appropriate, it will make a risk 
assessment. But there is no requirement in the Glenn substitute that 
either the cost-benefit analysis or risk assessment be used in the 
rulemaking process. Now, it seems to me that that destroys the whole 
purpose of regulatory reform. I think many of us feel very strongly 
that regulatory reform, 

[[Page S 10219]]
as a general rule, means that benefits should justify costs.
  Mr. President, I ask unanimous consent that the time before the 
recess be further extended for a statement to be made by the majority 
leader, following the statement of the minority leader.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The minority leader is recognized.
  Mr. DASCHLE. Mr. President, I appreciate very much the distinguished 
Senator from Delaware accommodating both myself and the majority 
leader.
  Mr. President, over the last week we have debated a regulatory reform 
bill that poses a number of serious concerns. Senators have come to the 
floor with amendments to address those concerns for over a week now.
  It has become increasingly clear that in order to produce a bill that 
will be acceptable to a majority of this body and the President, 
significant changes will need to be made. Frankly, given the way the 
debate has gone--the fact that we have until now been unable to pass 
most of our amendments--I am not optimistic that we will be able to 
bring this bill into a form that is reasonable and responsible, unless 
the circumstances change.
  Despite efforts last week to clarify that the bill will not override 
existing law, the so-called least-cost standard that remains will drive 
agencies away from choosing more cost-effective and thus economically 
sensible and justifiable regulatory options.
  Last week, the Senate rejected by one vote my amendment to protect 
the ability of the Department of Agriculture to issue its proposed rule 
requiring science-based hazard analysis and critical control point, or 
HACCP, systems in meat and poultry inspections.
  I later learned that while I was here on the Senate floor recounting 
the story of 2-year-old Cullen Mack, a young boy from South Dakota who 
fell ill from eating beef contaminated with E. coli bacteria, people 
were suffering from E. coli poisoning in at least four States: Georgia, 
Tennessee, Wisconsin, and Illinois.
  So, despite the fact that we are confronted presently by real gaps in 
our ability to ensure a safer food supply, and despite the fact that 
the USDA rule would take a huge step toward that goal, we continue to 
have a bill that would subject that rule to legal challenge and 
consequent delay.
  Farmers have special concerns about this bill. The Department of 
Agriculture each year issues regulations to implement the farm 
program-- regulations that address wheat, wool, rice, cotton, and 
feedgrain programs. The Department issues regulations to implement the 
Federal crop insurance program and the Conservation Reserve Program. 
USDA marketing orders--orders which are voluntarily approved by 
agricultural producers--are implemented through Federal regulations.
  Many, if not all, of these regulations would be subject to the cost-
benefit and risk assessment delays of this bill. They would be subject 
to the decision criteria in the bill calling for the least-cost option, 
and they would be subject to judicial challenge. Do we really want to 
foreclose regulatory options that would provide greater benefits to 
farmers? Is this what we really want for rural America? I certainly do 
not think that this makes sense for South Dakota or any other rural 
State.
  Recently, the majority leader, came to the floor of the Senate to 
discuss the power of shame. His comments were made in the context of 
the public debate over the content of Hollywood movies.
  The leader made the point that shame can be a very valuable tool in 
the effort to encourage movie-makers to be more socially responsible in 
writing and producing movies. I agree. I think that in this society, 
shame can be a very powerful means of encouraging more responsible 
behavior.
  Certainly, the evidence is clear that the Community-Right-To-Know 
Program has been able to put shame to good use. What industry wants to 
declare year after year that they are releasing poisons into the air 
and water of local communities? What industry is so callous that it is 
not moved to reduce those releases when faced with public disclosure of 
its behavior?
  Why, then, if we can agree that shame is such a powerful tool, are we 
attempting to erode the effectiveness of the toxic release inventory--
known as the Community-Right-To-Know Program--in this bill?
  Last Thursday, this body voted against an amendment by Senators 
Baucus and Lautenberg to protect the Community-Right-To-Know Program.
  Apparently, despite the clear success of this program in getting 
industries to cut their releases of toxic chemicals, shame is too tough 
a medicine for some industries to endure. Instead of shaming the 
special interests into responsible behavior, the Senate essentially 
defended the special interests' shameful behavior.
  In addition to the special-interest fixes and the willingness of the 
sponsors of the bill to undermine even the most needed and supported 
rules, there are countless opportunities for petitions in the bill that 
will consume vast agency resources. Petitions themselves are subject to 
judicial review, increasing the likelihood of delay and administrative 
burden.
  The sum effect of all these provisions would create havoc with out 
ability to protect public safety. The Office of Management and Budget 
estimated that the Dole-Johnson bill would cost the Federal Government 
roughly $1.3 billion to implement, including the salaries of an 
additional 4,500 full-time Federal employees, who would be needed to 
fulfill the bills' requirements. I am skeptical that the bill itself 
could even pass a cost-benefit test. It may well impose more costs on 
the Federal Government--and thus the taxpayers--than it purports to 
save in regulatory expenses.
  At a time when we are trying to downsize the Government and balance 
the Federal budget, it makes little sense to consider legislation that 
would reverse our course. Last week, the House appropriators 
recommended cutting the Environmental Protection Agency's budget by 
one-third. Other Federal agencies will surely feel the budget knife 
this year and in the years to come.
  Where will the money to pay the costs of this bill come from? Where 
will we find this army of analysts to fulfill all the new requirements 
of this bill? Who will pay for them?
  The primary beneficiaries of this bill will be the large corporate 
law firms, which undoubtedly will enjoy a renaissance of business if it 
becomes law. The judicial review provisions invite a morass of 
litigation. In fact, I understand that there will be at least 144 
different issues that can be litigated, if this bill is enacted. It is 
ironic that this body passed legislation limiting opportunities for 
litigation earlier this year and now stands poised to pass a bill 
designed to create an explosion of litigation.
  Mr. President, no Senator would agree that every regulation that has 
ever been issued by the Federal Government makes good sense. All of us 
Members recognize that excesses occur in the development and 
enforcement of rules.
  In many cases, we in Congress are to blame, as we enact laws that 
provide little or ambiguous regulatory guidance. Federal agencies are 
staffed by human beings, who are known to make mistakes from time to 
time. The political winds frequently change, carrying the Federal 
agencies in different and often inconsistent directions. So, the entire 
process is imperfect.
  The question we are confronted with, then, is how can we improve the 
regulatory development process without crippling the ability of the 
Federal Government to protect the quality of our food supply, our 
water, our air, and all the other of those services that Americans have 
come to expect.
  The bill we have been debating now for a week was seriously flawed 
when it was introduced, and our efforts to improve it have been 
thwarted. It remains a bill that could be used to undermine the ability 
of the Federal Government to carry out its responsibility to protect 
our environment and the health of American families. It is not 
emblematic of the type of society that most Americans believe we should 
be striving for, and should not be enacted in its current form.
  The alternative regulatory reform bill that has been introduced by 
Senators Glenn, Chafee, and others would provide serious, constructive 
reform that I believe should gain broad support. Unlike the Dole bill, 
the Glenn-

[[Page S 10220]]
Chafee bill would limit the opportunities for litigation to the 
fundamental question of whether the rule is a major rule and whether 
the final rule is arbitrary and capricious, taking into account the 
entire rulemking record. Unlike the Dole bill, it does not allow 
judicial review of the agency decisions to grant or deny petitions.
  The Glenn-Chafee bill contains no special-interest fixes, which do 
not belong in a procedural bill like this and which should only be 
addressed through hearings and legislation debated within the 
committees of jurisdiction.
  The Glenn-Chafee alternative does not impose rigid criteria of the 
Dole bill that agencies must apply when selecting a regulatory option, 
driving agencies toward the cheapest, but not necessarily the most 
cost-effective, alternative.
  I think we can all agree that the costs and benefits of proposed 
rules should be considered during their development. But calculating 
those costs and benefits can present a great challenge.
  What is the value of ensuring that our children and grandchildren do 
not suffer the effects of lead on their ability to reason? What is the 
value of ensuring that when we take our families to see the Grand 
Canyon, the air will be clean and we will have a clear view of that 
incredible vista? Given the extreme challenges in characterizing these 
values, does it make sense to apply such a rigid test to the rules that 
will effect the quality of our lives so profoundly?
  The Glenn-Chafee substitute places cost-benefit analysis in proper 
perspective. It requires agencies to identify the costs and benefits of 
proposed rules, but does not elevate cost considerations above all 
else. The cheapest option is not always the best or the most cost-
effective one.
  The Glenn-Chafee bill follows an approach that I believe provides a 
far better representation of the goals and objectives of mainstream 
America with respect to regulatory reform. Apparently the Governmental 
Affairs Committee agrees with me.
  I say that because the Glenn-Chafee is nearly identical to the bill 
passed unanimously by the Governmental Affairs Committee. It is 
moderate and sensible, and I believe it should serve as a model for 
reforming the regulatory process. The modifications that Senators Glenn 
and Chafee subsequently made to the Governmental Affairs-passed bill 
represent good, sensible improvements.
  First, we have eliminated the arbitrary sunset for existing rules, 
that would have occurred whenever an agency failed to perform the 
needed review in a timely manner. Given the history of antagonism to 
environmental and public health and safety regulations that have been 
demonstrated by recent administrations, it does not make sense to 
provide future administrations that might also be antagonistic to such 
rules with the incentive to intentionally fail to perform reviews as a 
back-door means of repealing existing rules and thwarting the will of 
Congress.
  Second, the Glenn-Chafee bill eliminates the narrative definition of 
major rules, adding clarity to the bill, and limiting its scope so as 
not to overburden Federal agencies.
  Finally, the Glenn-Chafee alternative incorporates technical changes 
to the risk assessment portions of the bill to more closely track 
recommendations made by the National Academy of Sciences, and to cover 
specific programs, not merely agencies.
  These changes strengthen the bill, make it more responsible and more 
reasonable. If the Senate is interested in real reform and wants to 
pass a bill that can be signed into law then I urge my colleagues to 
support this substitute.
  Mr. President, I know the distinguished majority leader is here. To 
accommodate him and allow Senators to get to the caucus, I yield the 
floor.
  Mr. DOLE. Mr. President, I thank the Democratic leader, Senator 
Daschle. I will take just a moment. I want to review for my colleagues. 
I think we made some progress on the regulatory reform bill. I think 
everybody would like to vote for regulatory reform.
  There are some limits. We cannot accommodate everyone's request. We 
would have a bill that many on this side and many on that side would 
not vote for if we tried to accommodate every request.
  There will be a cloture vote immediately after the vote on the so-
called Glenn-Chafee substitute. I think there will be a third cloture 
vote. As I set out in the schedule, hopefully we would finish this bill 
today, to start on Bosnia late this evening or early tomorrow morning.
  There has been a cloture petition filed. There could be a third 
cloture vote. I have not made that final determination. Sooner or 
later, we have to recognize we have just about accommodated everybody 
we can. We have made a number of major changes in this legislation. 
Some are concerned that perhaps we made too many--``we,'' talking about 
the people who manage the bill and understand the bill.
  We think it is a good bill. It is real regulatory reform. It is what 
the American people are demanding. It is what small businessmen, 
farmers, ranchers, everybody else is demanding. We believe it is time 
to come to grips with it, and move on to something else.
  We have had parts of 9 days on this bill. That seems to be a standard 
on the Senate side. Everything takes 9 days. Maybe this will take 10 
days. I do not know that the end is in sight. I alert my colleagues, if 
you are for regulatory reform, vote for cloture; if you are opposed to 
regulation reform, vote no, as you did yesterday.

                          ____________________