[Congressional Record Volume 141, Number 118 (Thursday, July 20, 1995)]
[Senate]
[Pages S10387-S10394]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COMPREHENSIVE REGULATORY REFORM ACT

  The Senate continued with the consideration of the bill.
  Mr. BROWN. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The pending business before the Senate is S. 
343, the regulatory reform bill.
  Mr. BROWN. Mr. President, I call up my amendment 1550.
  The PRESIDING OFFICER. The Dole substitute is not open to amendment 
at this time.
  Mr. JOHNSTON. Mr. President, parliamentary inquiry: Who is it that 
controls the time?
  The PRESIDING OFFICER. At this point, the time is controlled by the 
two leaders or their designees.
  Mr. DOLE. Mr. President, I designate Senator Hatch.
  Mr. DASCHLE. I designate Senator Glenn.
  The PRESIDING OFFICER. Who yields time?
  Mr. BROWN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. BROWN. Mr. President, what is the pending business of the Senate?
  The PRESIDING OFFICER. The Hutchison amendment No. 1789.
  Mr. BROWN. Mr. President, I ask unanimous consent to set aside that 
amendment so I may offer my amendment No. 1550.
  The PRESIDING OFFICER. Is there objection?
  Mr. JOHNSTON. Mr. President, I hate to object, but I think we have 
the 1-hour debate before the cloture vote.
  Mr. BROWN. Let me assure the Senator. My hope is this could be 
unanimously accepted but I would be happy to agree to a 5-minute time 
limit. Let me explain very quickly.
  Mr. JOHNSTON. Mr. President, if one of the Senators can see if we can 
clear it, then we might not have any debate.
  Mr. BROWN. I thank the Senator.
  Mr. JOHNSTON. Mr. President, I wonder if the Senator will yield me 10 
minutes?
  Mr. HATCH. Could the Senator take 5 now and if he needs more I will 
be happy to?
  Mr. JOHNSTON. Fine.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, it is like that tennis match I saw the 
other night, where the games were even and they were in the tie 
breaker. It is 6-all, in the tie breaker, and there is 1 point that is 
going to make the difference. And it is this vote. The question is, 
Does regulatory reform survive or not? Mr. President, it will survive 
if this cloture vote is granted.
  We have been told that there is ongoing negotiation. I can tell you, 
there are at least three points which are not solvable, and upon which 
negotiation is not getting closer but is getting further away. Let me 
explain those three points.
  First, can you review existing rules? All of those rules out there 
which have been adopted, some without consideration of science, some 
without the foggiest notion as to what they would cost, some defying 
logic, some being adopted in opposition to what their own scientists 
have said--can you review those existing rules?
  In the Dole-Johnston substitute, you can review those existing rules. 
In the Glenn substitute, there is no right to review existing rules.
  Second, the question of what we call decisional criteria. That is a 
very minimum, commonsense rule that says in order to have a rule you 
have to be able to certify that the benefits justify the cost. Mr. 
President, you would think that would be not only common sense but that 
would be a rule of logic, a rule of proceeding as to which all Federal 
bureaucrats would adhere. But there is a gulf between the two sides in 
this dispute. We have decisional criteria. The Glenn substitutes have 
what you might call standards for discussion. That is, you can discuss 
whether or not the benefits justify the cost, but it is not a test and 
it is not going to be used by anybody in determining the reasonableness 
or the arbitrariness of that regulation.
  Finally, there is a question of whether the court can review the risk 
assessment, or the cost-benefit ratio for determining whether or not 
that rule is arbitrary and capricious. I will read the latest draft.

       The adequacy of compliance or failure to comply shall not 
     be grounds for remanding or invalidating a final agency 
     action.
       The adequacy of compliance or the failure to comply shall 
     not be grounds for remanding or invalidating a final agency 
     action.

  In other words, it does not matter how bad this risk assessment is; 
it does not matter how central the science is to the question to be 
done; it does not matter whether it is junk science that uses all 
scientists on one side of a question; it does not matter how 
unreasonable, how outrageous the failure is to comply with the risk 
assessment or cost-benefit analysis--the court may not remand that case 
to cure that error. That is exactly what we are asked to do.
  Mr. President, we are getting nowhere fast. In my view, it is a 
question of whether you want real regulatory reform or whether you want 
sham regulatory reform. If you want sham, really if you want business 
as usual, then vote no on cloture, because that is what you will get 
and you will be able to go around and say how great these bureaucrats 
are and what a good job they are doing, because they are going 

[[Page S10388]]
to continue to do exactly what they are doing now.
  If cloture is voted, and I hope and trust it will be, there are a lot 
of amendments we are perfectly willing to consider.
  But there has to be an end to this process. We cannot have amendments 
out of the expanding file where they keep coming and they keep coming.
  Mr. President, the things that we have solved here--judicial review, 
we thought we had solved that; supermandate, we accepted their 
language; we thought we had solved decisional criteria; we thought we 
had solved agency overload, had taken Sally Katzen's own concept; we 
dropped the Tucker Act; we dropped the chevron language; we upped the 
threshold from $50 million to $100 million; we gave new language on 
TRI; we are willing to do more; we are willing to discuss the Delaney 
rule; we did away with Superfund. Mr. President, we have done a lot. I 
think we have solved all the problems. Sally Katzen gave a list of nine 
faults with the original Johnston proposal. And I think we have solved 
all nine of them.
  Now we have found that some of our solutions use the words of the 
opponents--conceding to them. They used those very words against us 
which they admitted, which they confected. They used those words 
against us. Mr. President, I do not think it is reasonable.
  I hope my colleagues will bring this debate to an end so we can get 
on with the amendment process, and so we can pass a bill. Otherwise, it 
is R.I.P. It is so long to risk assessment.
  The PRESIDING OFFICER. Who yields time?
  Mr. GLENN. Mr. President, I yield myself 10 minutes.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, I do not really recognize what has happened 
here by the description we just heard on the floor. We have been 
negotiating in good faith. There has been a lot of progress made. We 
started out with decisional criteria. They wanted a least-cost. We 
wanted cost-benefit. The compromise was made that we go to greater net 
benefits.
  Some of the departments still have some problems with that. We are 
working some of those things out. So we have made progress in that 
area.
  Judicial review--it went to the final rule. But one of the real 
killers in this is the fact that we still have unlimited new petition 
processes. That is just a way of saying that anybody that has an 
interest in killing any particular legislation or any particular 
regulation will have the opportunity by the possibility of not just a 
few but hundreds and hundreds of potential routes in the petition 
process by which they can prevent legislation or prevent regulations 
being written that might benefit all of America. Yet, they can stop it 
with this particular bill with those petition processes. That is a 
killer. We made some proposals on that.
  It was my understanding, in talking to the majority leader on the 
floor about an hour and a half ago, that maybe there was some give in 
that area and perhaps we would be willing to talk about the petition 
process, which they were not willing to do before.
  Another one that is a killer on this is going to require that when an 
agency reviews the rule that all reasonable alternatives have to be 
considered. That is an infinite direction. That is a direction to do 
something that is probably not possible to do, to take all reasonable 
alternatives. We wanted to do what the distinguished Senator from 
Louisiana proposed back several days ago, and that was limit that to 
perhaps just three or four. We were willing to do that. That is fine.
  The sunset provision on this, we made progress in that particular 
area.
  On the special interest section, there were proposals made on that 
that they were willing to discuss. The toxics release inventory, we 
want to do that.
  At each step along the way what has happened is when we have gotten a 
letter, a proposal that listed the real answers to some questions we 
had, we have responded. We are in that same position right now. We are 
responding. A letter will go back which we worked on early today and 
earlier this afternoon. That letter is going back right now proposing 
some give and take in these particular areas.
  Why we have to go to a cloture vote now I do not know. My own 
personal bottom line on these things has narrowed down through all of 
this process over the last 2 weeks to the no new petition process, to 
limiting the reasonable alternatives to three or four, as was already 
agreed to, and to striking that section on special interests. That is 
the one that is a real killer as far as health and safety goes because 
it leaves the toxics release inventory. It takes it out. It takes out 
Delaney which needs modification but not just elimination. And food 
safety, health, things like that go by the board.
  So I just disagree strongly that we have not made considerable 
progress on this bill.
  Now let me start with some truths in this debate. We have heard lots 
of horror stories about bad regulations on the floor from the 
proponents of S. 343. I do not have to hear those on the floor. I get 
enough of them when I go back home. Many of the stories brought out on 
the floor here were just plain false. I gave the rebuttal to some of 
those things on the floor here where we think they went too far. Some 
of the ones were completely valid. We have pointed them out on the 
floor too.
  Let me respond to several of the accusations that the Senator from 
Louisiana has made about the Glenn-Chafee bill.
  He says our lookback provisions for review of existing rules has ``no 
teeth.'' That is wrong. We do have judicial review of the agency 
requirements to review rules, but we do not let special interests 
petition to put rules on the list. Instead, we provide a process where 
interest groups can appeal to Congress to have a rule reviewed. And 
that makes more sense. It is more fair.
  He says our judicial review language allows more avenues into 
reviewing parts of cost-benefit analysis and risk assessment than the 
Dole-Johnston bill. I do not feel that is true. In fact, I think it is 
not true. We state explicitly in our language that ``the court shall 
not review to determine whether the analysis or assessment conformed to 
the particular requirements'' of cost-benefit analysis and risk 
assessment. We would like them to do the same. I think we are making 
progress in that area, too.
  Senator Johnston wrote a letter to me, Senator Biden and Senator 
Baucus in March of this year stating all of his concerns with the Dole 
bill as it was then. Many of the issues he raised --like too much 
judicial review and the petition process--are still valid problems in 
the Dole-Johnston bill. In fact, he stated explicitly in his letter 
that he did not agree with a petition process for the review of rules. 
Now he is calling the Glenn-Chafee bill weak for not having such a 
process.
  No. 3, many have accused us of not really being serious about 
regulatory reform. Let me give you a little background on our good-
faith effort to put together a viable regulatory reform package.
  The Governmental Affairs Committee reported out a strong regulatory 
reform bill with full bipartisan support 15 to nothing, coming out of 
committee with 8 Republicans and 7 Democrats. This bill formed the 
basis for the Glenn-Chafee substitute. It is a strong, a balanced 
approach to regulatory reform. It will relieve the regulatory burden on 
businesses as well as protect the environment, the health, and the 
safety of the American people.
  On the other hand, the Judiciary Committee, on which the Dole-
Johnston bill is based, had a very divisive debate on this bill, and 
they ended up reporting out the bill without amendment.
  Before bringing the Dole-Johnston bill to the floor, we sat down with 
the supporters of S. 343 and had very serious negotiations on two 
different occasions. We outlined our concerns; we provided written 
changes to their language. And for the most part our concerns were 
dismissed out of hand.
  Now, after a strong vote on the Glenn-Chafee substitute and two 
losing cloture votes, they wanted us to come back to the table and 
negotiate one more time. And we did that yesterday because we want 
regulatory reform.
  I am as dedicated to regulatory reform as anybody in this body. We 
need it. But we want commonsense reform. We do not want regulatory 
rollback that is disguised in the rhetoric of regulatory reform. We 
cannot tie the agencies up in unneeded bureaucratic 

[[Page S10389]]
steps for a variety of new lawsuits. That is not regulatory reform. 
That is what this bill does.
  We gave Senator Hatch a list of changes that were necessary before we 
could consider supporting the Dole-Johnston bill. They appear to be 
moving on a few important issues. Today they are proposing to:
  First, change--this was yesterday--change the ``least cost'' language 
in decisional criteria and replaced it with ``greater net benefits.''
  Second, modify a few parts of their judicial review language, 
including getting rid of ``interlocutory review,'' which is 
encouraging. However, there are still some questions in this area.
  Third, they would possibly adopt the sunset language in the Glenn-
Chafee bill.
  Fourth, they said they would discuss the toxics release inventory.
  But these are not definite changes, and, even so, this bill still has 
significant problems. First, it has six new petition processes. All, 
except one, are judicially reviewable and must be granted or denied by 
an agency within a certain period. This is just a formula to tie up the 
agencies and prevent them from doing their jobs effectively.
  They do not change the effective date of this bill. That means that 
as soon as this bill becomes law everything on that date must 
immediately comply with the many rigorous requirements of this bill. 
This captures all the rules that are out there in the pipeline right 
now, and will send agencies back to square one on some regulations 
delaying them unnecessarily.
  This is a poor use of Government resources.
  Third, they still have special interest fixes. They say they are 
willing to discuss TRI, and we want to talk about that. But making a 
cloture vote now does not permit that to happen right now. We think 
these provisions simply do not belong in a regulatory reform bill. The 
Governmental Affairs Committee and the Judiciary Committee have held no 
hearings on these issues. In effect, we are taking jurisdiction away 
from the committees of normal jurisdiction in these areas. These are 
special interest fixes, clear and simple.
  Fourth, they still have major changes to the Administrative Procedure 
Act, including adding new petitions. These are unnecessary. They will 
only add to litigation.
  Fifth, too many rules are covered, given the Nunn amendment that 
sweeps in any rule that has a significant impact on small businesses. 
These are just some of the major issues still outstanding.
  Now, we still want to work in good faith with Senator Hatch, Senator 
Dole, Senator Johnston, and others, but we do not want medicine that is 
worse than the disease itself. And we need sensible, balanced, 
regulatory reform. The bill as it is now would permit any interest 
group to tie up in legislation anything for an indefinite period of 
time that they did not want to see go through. That is not reg reform. 
That is regulatory favoritism for the favored few. I do not see that 
that does anything for the American people.
  Under the Glenn-Chafee bill----
  The PRESIDING OFFICER. The 10 minutes has elapsed.
  Mr. GLENN. I yield myself another 2 minutes.
  What we do in that bill is try to hit a balance. We provide redress 
for reg reform that has gone too far. We provide review over a period 
of time for every single law, every single rule and reg that is out 
there now. At the same time, we do not dump all of the health and 
safety regulations that have been built up over the last 25 years, just 
toss them out or have the possibility by the processes we are providing 
in this law of throwing them out.
  That would be a mistake. We do not want to throw out the baby with 
the bath water. What we set up in our bill, the Glenn-Chafee bill, was 
an even-handed approach to this thing. All you can say when you are 
setting up a bill like the Dole-Johnston bill that provides means by 
which any interested party can prevent a rule or regulation from going 
into effect for an indefinite period of time--and that is exactly what 
this bill does--it cannot be termed anything except regulatory 
favoritism. That is not in the best interests of the American people.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I yield 3 minutes to the distinguished Senator Oklahoma.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, first I would like to compliment my 
friend and colleague, Senator Hatch, from Utah and also Senator Roth, 
from Delaware, for their patience in working on this bill. I will admit 
that they have shown greater patience than myself. They have, I think, 
done an outstanding job in managing this bill. It is a very difficult 
bill. I also want to compliment the majority leader of the Senate, Mr. 
Dole.
  I will tell you, we are going to have this third cloture vote, and I 
think this is the vote. I have heard some of my colleagues say, well, 
we need to make some more adjustments. We have made I think over 100 
adjustments to this bill. I might go through a list, or maybe put a 
list in the Record, of some of the changes we made.
  I remember 10 days ago they said we need to increase the threshold 
from $50 to $100 million. That has been done. We need to eliminate the 
provisions dealing with Superfund. That has been done. We need to 
clarify that it does not jeopardize health and safety. We have done 
that as well. We have had many people mention that it does have a 
supermandate in it. We said, no, it does not have a supermandate. It 
does not override the law.
  Mr. President, my point is that we have bent over backwards to 
negotiate with our friends and colleagues who have different views, but 
we have to draw this thing to a closure. We have to have it come to a 
conclusion. We need to have, unfortunately, cloture. I say 
unfortunately; I do not like cloture. But if we are going to end this 
bill, we have to have cloture. We have over 250 amendments filed--250 
amendments--many of which are very arbitrary. Some are serious.
  I wish to compliment my friend and colleague, Senator Johnston from 
Louisiana, because he has worked tirelessly to put this package 
together. Is it perfect? No. But is it a giant step toward reining in 
unnecessary and overly expensive regulations? Yes, it is. And it needs 
to pass. The cost of regulations today exceeds $6,000 per family. And 
that is growing out of control. We need to rein it in. This is the bill 
to do it.
  We cannot do it if we do not get cloture. I do not think we are going 
to have another cloture vote. I think this is it. If we do not get 
cloture today, my guess is we are killing this bill for this Congress, 
and a lot of people have worked too hard for that to happen. For all my 
colleagues who say they want regulatory reform, if they want it, they 
need to vote for cloture. We will have the opportunity to make some 
adjustments to improve the bill if that is necessary.
  I urge my colleagues to vote for cloture and let us pass a positive 
bill that will rein in unnecessary regulations.
  Mr. HATCH. Mr. President, I yield 6 minutes to the distinguished 
Senator from Rhode Island.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, I am going to vote for cloture on the next 
vote, this vote coming up. If regulatory reform means rules that are 
more cost effective and based on better science and information, then I 
am for regulatory reform. I continue to believe that the Senate can 
produce a good regulatory reform bill. So I will vote for debate on 
this bill to go forward.
  Now, I do not think this bill is perfect. There are over 200 
amendments pending to this bill. Some of these amendments, if enacted, 
would roll back the progress that has been made to protect health and 
the environment over the past 25 years. Every Senator will be reserving 
judgment on that final vote to see the final package when the day is 
done. In other words, this is no commitment on my part to vote for the 
final bill. We will see what it looks like.
  If cloture succeeds, I will be working to improve this bill. I have 
spoken to Senators Hatch and Roth about provisions that continue to 
cause me concern, and they have agreed with some of those concerns and 
promised to work with me on those items.
  Let me say I am grateful to the majority leader and to the Senator 
from 

[[Page S10390]]
Utah Mr. [Hatch] and the Senator from Delaware, Mr. [Roth] for their 
willingness to address the concerns that I have expressed. We have put 
together a package of amendments that will be offered later. They have 
promised support for those amendments. They will make several changes 
to this bill that will resolve some of my major concerns.
  This package of amendments will strike the provision in the bill that 
requires agencies to pick the least costly regulatory option. That will 
no longer be required. They will not be required to pick the least 
costly option. Instead, they are to select the option that provides the 
greatest net benefit. Now, this is a very significant change.
  This package that we are talking about makes several changes to the 
judicial review provisions, including deletion of the item that would 
have required substantial support in the record for all the facts on 
which the rule is based. That is deleted.
  The package also deletes the automatic sunset of existing rules. It 
scales back the large number of petitions that could be filed under the 
Administrative Procedure Act. These amendments will definitely improve 
this bill.
  It is time, in my judgment, to complete work on this and move on to 
other important business in the Senate. We have a lot before us. If we 
work hard, we can get a good regulatory reform bill.
  Mr. President, I will certainly be striving to achieve that.
  Mr. COHEN. Will the Senator yield?
  Mr. CHAFEE. I would.
  Mr. COHEN. I would like to associate myself with the Senator's 
remarks and indicate that I wish to commend him for the effort he has 
made to try to persuade our colleagues to move closer to the position 
of the Senator from Rhode Island and the Senator from Ohio.
  Mr. President, I have been engaged in the debate over regulatory 
reform since February when the Government Affairs Committee held a 
series of hearing on the issue. I was involved in the negotiations over 
the bill that emerged from the committee and held a field hearing in 
April where Mainers had an opportunity to express both support for and 
opposition to regulatory reform.
  I have also carefully watched the debate that has transpired on the 
Senate floor over the past 2 weeks. Tuesday there was a vigorous debate 
on the Glenn-Chafee substitute, which, to my disappointment, was 
narrowly defeated.
  I believe that there has been sufficient time for all views to be 
aired and that extended debate has let to substantive improvements in 
Dole-Johnson bill. S. 343 has changed a great deal since its 
introduction. Its supermandate has been significantly modified, its 
petition process has been narrowed, and the scope of judicial review 
has been reduced. Due to an amendment on the floor, the threshold for 
rules to qualify for cost-benefit analysis has been raised from $50 to 
$100 million, a change that will help agencies target resources at 
remedying rules that impose the greatest burden on the economy.
  Additional negotiations have taken place during this week, since the 
first cloture petition failed, and some additional concessions have 
been made to opponents of the bill. I believe that both sides have 
negotiated in good faith, and I applaud Senators Hatch and others 
involved in the process for accepting a number of reasonable changes to 
the underlying bill.
  While these changes do not go far enough to ameliorate the concerns I 
have previously expressed about the bill, there comes a time when the 
majority must be permitted to impose its will. I believe that time has 
now come.
  I would prefer to see a bill that relied more on Congress to improve 
the regulatory system than the courts, and I would like to try more 
incremental reform instead of flooding our agencies with such 
burdensome analytical requirements that their effectiveness may be 
hampered.
  Yesterday I had occasion to discuss this legislation with Philip 
Howard, author of the book that has been cited dozens of time during 
the course of this debate, ``The Death of Common Sense.'' To summarize 
his views, the man who wrote the book about common sense believes that 
the bill, in its current form, does not make sense. Its over reliance 
on litigation and Rube-Goldbergesque petition process will complicate 
the regulatory process instead of streamlining it. We might well do 
better to start all over again and try to come up with a bill that is 
less complicated, but would achieve the goal of meaningful regulatory 
reform.
  Even though I have been unable to convince my colleagues on these 
issues, I will not stand in the way of permitting an up or down vote on 
the approach that they support. But if cloture is obtained, I will vote 
against the bill.
  Even if the bill passes the Senate, there remains a long way to go 
before the bill becomes law. The legislation that passed the House is 
clearly unacceptable. By voting for cloture today, I am not suggesting 
that I will vote for cloture on a conference report that contains the 
same defects as the House bill or exacerbates the weaknesses of the 
Senate bill.
  But the time has come for the process to move forward. I still hold 
out hope that the bill will continue to be improved and a bipartisan 
regulatory reform bill will be enacted into law during this session of 
Congress.
  Mr. CHAFEE. Mr. President, I think we share those concerns. We do not 
have any idea what will emerge from conference, and we are not sure 
what is going to happen to these amendments that are before us that 
will be taken up. So my commitment is to vote for cloture. That 
completes my commitment.
  I thank the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. GLENN. I yield 7 minutes to the distinguished Senator from 
Michigan.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I think most Members of this body want a 
strong regulatory reform bill. I hope most Members of this body also 
want to make sure that we preserve important health, safety, and 
environmental protections. The problem with the current version, the 
most recent version of the bill before us, is that it fails both tests. 
The bill before us has such procedural complications, so many grounds 
for litigation, so many appeals to court, that it will not cure the 
patient. And this patient is sick. It is going to choke this patient 
with litigation that for the first time will be permitted on just about 
every request that is made to an agency. Under this bill, for the first 
time, if you make a request to an agency for an interpretation of a 
general statement of policy, then the letter that you get back from the 
agency--and there are tens of thousands of these letters--is subject to 
judicial review.
  We have not had judicial review of agency letters giving guidance, 
statements of policy, or interpretations of interpretive rules. For the 
first time; for the first time.
  Probably 90 percent of the paper that comes out of an agency in terms 
of giving guidance to small business people is going to be subject to 
litigation. This is not curing the patient, this is killing the 
patient. This is choking the patient to death instead of giving 
corrective surgery. Now, that is the current version, the current 
version of the Dole-Johnston bill.
  Now, we understand there are going to be some changes that will be 
offered in this as a result of negotiations, and that is fine, if, in 
fact, those changes are agreed to by the Senate, and if there is a 
chance to debate and review these things to see whether or not, in 
fact, it has happened. But we have just been informed of this in the 
last few minutes. In the last few minutes, we are now informed there is 
going to be a whole bunch of additional changes that are going to be 
made in the Dole-Johnston bill, and changes are needed.
  The problem is, there are a lot of additional changes which are 
needed, as well. There are amendments at the desk which are relevant, 
which will be precluded from being offered if cloture is invoked. That 
is a critical distinction, because cloture will prevent the sponsors of 
relevant amendments which are not technically germane from offering 
those amendments. And may I say, that is also going to be true of 
changes in the proposals which are going to be offered by the Senator 
from Rhode Island. That language has not been offered yet. Amendments 
to that language presumably are not going to be in order because that 
language was 

[[Page S10391]]
not even in the bill at the time the cloture motion was filed.
  Yet, if cloture is invoked, amendments which are relevant to the bill 
which was on file when cloture was filed will be precluded, as well as 
amendments to these new changes which have been discussed in the last 
few minutes.
  Now, we have made too much progress to legislate this way. We have 
had negotiations which have been fruitful. We have made progress which 
I think is reflected by the fact that the Senator from Rhode Island is 
now saying that many of his concerns have been addressed. That 
represents progress because many of the Senator's concerns are the same 
concerns that this Senator has and many other Senators have.
  But there are other concerns which we can address if we will continue 
a process which has made some progress. To suddenly terminate these 
negotiations by voting cloture and to rule out probably dozens of 
relevant amendments that many of us have filed in this bill is not the 
way to address regulatory reform.
  Mr. President, whether or not cloture succeeds--and I hope it fails--
these negotiations should continue. I think all of us that have been 
involved in these negotiations, as long and as time consuming as they 
have been, at times as frustrating as they have been, can honestly say 
we have made substantial progress. The last thing that we did was to 
submit a package proposal, and as far as I know, we have not yet 
received a package response.
  But rather than get involved in the debate over what the last item of 
negotiation was, let me simply say that we have made significant 
progress during these negotiations and that will be suddenly terminated 
and upset if cloture is invoked, which prevents relevant amendments 
from being offered. And amendments to language which has not even yet 
been seen, but which presumably will be accepted, according to the 
Senator from Rhode Island, are also going to be precluded, because that 
language which is going to be presumably accepted was not part of the 
bill at the time that the cloture motion was filed.
  I do not know of anyone who has worked harder for regulatory reform 
in this body than the Senator from Ohio. As long as I have been here, 
he has fought for regulatory reform, including cost-benefit analysis, 
risk assessment, and other changes. The bill which he sponsored, along 
with the Republican chairman of the Governmental Affairs Committee, got 
unanimous, bipartisan support in Governmental Affairs. That bill 
represented significant progress. That bill got 48 votes, basically, in 
this body a few days ago.
  There is, I believe, again, almost a consensus that we must do things 
differently in the regulatory area. The Senator from Ohio has been a 
stalwart fighter for regulatory reform. I think it is a mistake to 
derail the process which we now have, which is to negotiate a strong 
regulatory reform package, but one that does not choke the patient in 
the name of reforming regulations. We can have clean air, clean water, 
a safe environment, and we also can get rid of the abuses of the 
regulatory process. We cannot have both.
  The version that I have last seen, at least--the last version that we 
have--does not yet achieve those goals. Therefore, I hope that cloture 
will not be invoked, and that we will then pick up that negotiating 
process and conclude it. It was moving along quite well until this 
cloture motion was filed. I am afraid that this cloture motion, instead 
of advancing the goal which we all share of strong regulatory reform, 
will derail those negotiations. And that would be too bad.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield to the distinguished Senator from 
Missouri 2 minutes.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank the distinguished manager of this 
bill. He has done an excellent job with respect to the negotiations. 
They have been going on since February. We have been working on this 
bill for over a month. The last package that was presented to us by the 
other side actually gutted the provisions that small business needs in 
regulatory flexibility. They took out three other main provisions that 
small business wants.
  As I have said on this floor before, small business has made 
regulatory reform a top priority. The number three item of the 
delegates to the White House Conference on Small Business was making 
regulatory flexibility work for small business. We have just 
successfully negotiated with the distinguished chairman of the 
Environment and Public Works Committee, Senator Chafee, a commonsense 
change in regulatory flexibility that harmonizes it with the provisions 
in cost-benefit. So you have cost-benefit and regulatory flexibility 
for small business. So they work together.
  Mr. President, we have gotten down to what we call in Missouri ``Show 
me time.'' We have had a lot of talk, a lot of nice words. But the time 
has come to show me whether you are for small business or against it. 
Small business and agriculture, working men and women in America today 
want reasonable, commonsense regulations. We have had good input from 
both sides in this body. We now have a bill that ought to move forward. 
We are in a position to do so.
  So I urge my colleagues to invoke cloture, to cut off the filibuster. 
Let us get about the job of reforming regulations and see that we can 
have the commonsense protections that regulations give us without 
unnecessary burdens.
  I thank my colleague from Utah.
  The PRESIDING OFFICER. Who yields time?
  Mr. GLENN. Mr. President, I yield 7 minutes to the distinguished 
Senator from Massachusetts.
  The PRESIDING OFFICER (Mr. Bennett). The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I would like to begin by sharing with our 
colleagues a statement by the Vice President this afternoon:

       This afternoon, the Senate will consider shutting off 
     debate on the Dole regulatory reform bill. I urge Senators to 
     reject the motion and continue debate. The bill sells out to 
     special interests and puts the health and safety of all 
     Americans at risk. It creates more bureaucracy and more 
     loopholes for lawyers and lobbyists to challenge and weaken 
     health and safety standards. In essence, it threatens the 
     progress we have made over the past 25 years to protect us 
     from unsafe drinking water, contaminated meat and dangerous 
     workplaces.
       The American people expect and deserve better. The 
     President supports passage of true regulatory reform 
     legislation. However, this bill fails to achieve it. It 
     should be opposed if it cannot be changed, and should it come 
     to the President's desk, he would veto it.

  So the choice here, Mr. President, is whether we go through an 
exercise which will end up in a Presidential veto or whether we 
recognize what is really the choice here. The Senator from Louisiana 
suggested the choice is whether you want regulatory reform or not. That 
is not the choice before the U.S. Senate.
  The choice is whether you want to have a bill that, in the guise of 
regulatory reform, tears at the capacity of the regulatory process to 
work and undoes years of progress with respect to the health and safety 
and environment on behalf of special interests, or whether you want to 
continue to negotiate in an effort to come up with a bill that is fair 
and reasonable.
  Let me answer the questions of the Senator from Louisiana himself. He 
suggested to the Senate the question, can you review existing rules, 
and said, under Dole-Johnston, you can, but under Glenn you cannot. 
That is not true. That is just not true.
  Under the Glenn bill, you have the ability to get on to the schedule 
through the agency, and even if the agency turns you down you have the 
ability to have judicial review, and if judicial review turns you down, 
you have the ability to come before the U.S. Congress and have the 
Congress put you on the list. That is review: Congressional review, 
judicial review, and agency review.
  The Senator suggested that on decisional criteria, there is somehow a 
gulf between both sides. He said that in Dole-Johnston there is 
decisional criteria, but in Glenn-Chafee there is not. But the truth 
is, we have come to a point of compromise on decisional criteria, and 
we have given by accepting something that is not even in the Glenn-
Chafee bill. We put into our 

[[Page S10392]]
compromise an acceptance of the concept of decisional criteria so that 
you will, for the first time, have risk assessment and cost evaluation. 
That is a giving by both sides, which is reflective of what the 
compromise process ought to be.
  The last question the Senator asked was whether or not you can review 
in the end. He suggested that somehow we are trying to set up a process 
that will preclude review of the cost evaluation or the risk 
assessment. I say to my friend, that is not accurate. We are prepared 
to accept, and have accepted, the concept of cost analysis review taken 
into the whole record and judged for arbitrariness and capriciousness, 
and we have accepted the notion of risk assessment being reviewed as 
part of the whole record and taken into consideration for arbitrariness 
and capriciousness.
  What we disagree on to this day is whether or not the language set 
out in the Dole-Johnston bill sufficiently precludes the procedural 
aspects from being thrown into the mix in a way that increases more 
regulatory process.
  Mr. President, I have shown this before. I show it again because it 
is not heard. If Philip Howard's book about the death of commonsense 
suggested that the current regulatory process represents that death, 
this bill is the funeral, not just for commonsense but for the progress 
we have made on the health and safety and the environment, because it 
creates 88 different standards, formal standards, which will become 
part of the record which will then be subject to the review that the 
Senator will not assist us in guaranteeing will draw the distinction 
between procedure and the overall record.
  I respectfully say to my colleagues, this is not a vote about whether 
you want regulatory reform or not. It is a vote about whether or not we 
are going to continue to put this bill in a position to become a 
sensible bill that represents the resurrection of commonsense as 
opposed to its death.
  This bill, in its current form, has more petition processes than any 
agency could conceivably live under. If you are in favor of 
streamlining Government, if you are in favor of reducing bureaucracy, 
if you are in favor of taking the maddening chase of Washington out of 
the process, then you should not vote for cloture, because the fact is 
that this bill has such a tier of petitioning processes with so many 
requirements for evaluation, with so many time periods of a fixed 
certain time that you are going to have this bureaucracy tangled up on 
top of each other without the ability to serve the American people, 
which is their purpose.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KERRY. Mr. President, I hope our colleagues will allow us to try 
to continue and to negotiate a reasonable bill.
  Mr. HATCH. I yield 2 minutes to the distinguished Senator from 
Vermont.
  Mr. JEFFORDS. Mr. President, I rise to say that I am pleased we are 
making, I think, constructive progress on this bill. I have watched the 
bill as it has progressed, and I have not supported cloture up to this 
point, because I felt it was necessary to keep pressure on to make sure 
that constructive progress was made.
  I have seen things with respect to cost benefit, to net benefit and 
matters of change relative to judicial review and substantial other 
improvements. There are also other amendments pending which I believe 
can improve this bill. Whether they will improve this bill to the point 
that I could vote for it, I am not at all sure. But I will watch the 
progress as we go along.
  The filibuster should not be used purely to prevent passage of bills, 
but it should be used in a meaningful way to ensure that an opportunity 
is made for constructive change and constructive passage of a piece of 
legislation.
  So although I have not supported cloture in the past, it is my view 
that it is time to allow us to continue, recognizing that by granting 
cloture does not mean the debate closes, but rather that we will have 
amendments which are already filed and are relevant to be taken up.
  So I look forward to seeing what kind of progress we have made, what 
the bill looks like and, therefore, it is my intention to vote for 
cloture this time, whereas I have withheld my vote in the past two 
attempts.
  Mr. HATCH. I thank the Senator from Vermont. I yield 3 minutes to the 
distinguished Senator from Delaware.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. ROTH. Mr. President, I rise to urge my colleagues to come 
together to support the ongoing effort to reform the regulatory 
process. We want to make regulations both more efficient and more 
effective. We want to protect health, safety, and the environment in a 
more effective way, and we want to reduce the cumulative regulatory 
burden that impacts on all of us as consumers, wage earners and 
taxpayers.
  This is a call for progress, not retreat. Since the beginning of this 
session, I have stated repeatedly that regulatory reform should be a 
bipartisan issue and virtually everyone who has examined the regulatory 
process, regardless of their political bent, has concluded that it 
needs to be reformed.
  Let me just take a moment to share some revealing statements.
  President Clinton, in the preamble to Executive Order 12866 on 
regulatory planning and review, stated:

       The American people deserve a regulatory system that works 
     for them, not against them: a regulatory system that protects 
     and improves their health, safety, environment, and well-
     being and improves the performance of the economy without 
     imposing unacceptable or unreasonable costs on society; 
     regulatory policies that recognize that the private sector 
     and private markets are the best engine for economic growth; 
     regulatory approaches that respect the role of State, local, 
     and tribal governments; and regulations that are effective, 
     consistent, sensible, and understandable.

  The Executive order then concludes that ``We do not have such a 
regulatory system today.''
  In a seminal report, ``Risk and the Environment,'' a bipartisan, blue 
ribbon panel of the Carnegie Commission has emphasized:

       The economic burden of regulation is so great, and the time 
     and money available to address the many genuine environmental 
     and health threats so limited, that hard resource allocation 
     choices are imperative.

  Justice Stephen Breyer, who was nominated to the Supreme Court by 
President Clinton, has testified:

       Our regulatory system badly prioritizes the health and 
     environmental risks we face.

  Paul Portney, vice president of Resources for the Future, has 
observed that ``Much good can come from a careful rethinking of the way 
we assess risks to health and the environment and the role we accord to 
economic costs in setting regulatory goals.''
  All of these quotes show quite clearly that there is a very real and 
pressing problem with Federal regulation. This is not about rolling 
back environmental, health, and safety standards. This is about 
reforming the regulatory process so we can achieve more good with our 
limited resources. This is not a one-party issue.
  Mr. President, let me point out that today, the managers of S. 343, 
again, have agreed to many changes to accommodate the concerns of our 
colleagues. I doubt that our distinguished Vice President has had the 
opportunity to review these changes. But I hope he will, because I 
think if he did, he would see that this legislation that we are 
proposing today means real reform to a system that is badly out of 
kilter.
  Let me point out that we have agreed, for example, to add new 
language to make perfectly clear that S. 343 does not contain a 
supermandate. We have also agreed to amend the cost-benefit decisional 
criteria of section 624 to replace the least-cost test with a greater 
net benefits test. Moreover, we have agreed to streamline the petition 
provision to section 553; to delete interlocutory appeals; to replace 
the automatic sunset in section 623 with a provision in the Glenn-
Chafee substitute providing for a rulemaking to repeal a rule; and to 
delete the requirement that a rule have substantial support in the 
rulemaking files.
  Mr. President, these changes show clearly that we are acting in good 
faith to meet the concerns of our colleagues who want regulatory 
reform. I now call upon those who want to help this effort to step 
forward and support cloture. We must reform the regulatory process in a 
meaningful way, and the Dole-Johnston compromise would provide the 
reform we need. It would be a terrible waste to destroy this unique 
opportunity to reform the regulatory process.
  Mr. President, I yield back the remainder of my time.
 
[[Page S10393]]



                       CLEAN WATER ACT PENALTIES

  Mr. PRESSLER. Mr. President, it is my intent to offer an amendment to 
lift the unfair burden of excessive regulatory penalties from the backs 
of local governments that are working in good faith to comply with the 
Clean Water Act.
  Mr. President, the goal of the underlying legislation is to bring 
common sense to the regulatory process. That is the goal of my 
amendment.
  Under current law, civil penalties begin to accumulate the moment a 
local government violates the Clean Water Act. Once this happens, the 
law requires that the local government present a municipal compliance 
plan for approval by the Administrator of the Environmental Protection 
Agency [EPA], or the Secretary of the Army in cases of section 404 
violations. However, even after a compliance plan has been approved, 
penalties continue to accumulate. In effect, existing law gives the EPA 
the authority to continue punishing local governments while they are 
trying to comply with the law.
  When I talk with South Dakotans, few topics raise their blood 
pressure faster than their frustrating dealings with the Federal 
bureaucracy. Government is supposed to work for us, not against us. Mr. 
President, this is clearly a case where the Government is working 
against cities and towns that are trying to comply in good faith with 
the Clean Water Act.
  In South Dakota, the city of Watertown's innovative/alternative 
technology wastewater treatment facility was built as a joint 
partnership with the EPA, the city, and the State of South Dakota in 
1982. The plant was constructed with the understanding that the EPA 
would provide assistance in the event the new technology failed. The 
facility was modified and rebuilt in 1991 when it was unable to comply 
with Clean Water Act discharge requirements. Unfortunately, the newly 
reconstructed plant still was found to violate Federal regulations. The 
city now faces a possible lawsuit by the Federal Government and is 
incurring fines of up to $25,000 per day.
  The city of Watertown has entered into a municipal compliance plan 
with the EPA. Under the agreed plan, Watertown should achieve 
compliance by December 1996. However, that plan does not address the 
issue of the civil and administrative penalties that continue to 
accumulate against the city.
  Under the law, Watertown could accumulate an additional $14 million 
in penalties before the treatment facility is able to comply with the 
Clean Water Act requirements.
  Mr. President, I do not know of any cities in South Dakota that can 
afford those kinds of penalties.
  My amendment would offer relief to cities like Watertown. Under my 
amendment, local governments would stop accumulating civil and 
administrative penalties once a municipal compliance plan has been 
negotiated and the locality is acting in good faith to carry out the 
plan. Further, my amendment would act as an incentive to encourage 
governments to move quickly to achieve compliance with the Clean Water 
Act.
  This amendment simply is designed to address an issue of fairness. 
Local governments must operate with a limited pool of resources. 
Localities should not have to devote their tax revenue both to 
penalties and programs designed to comply with the law. It defies 
common sense for the EPA to be punishing a local government at the same 
time it is working in good faith to comply with the law. My amendment 
restores common sense and fairness to local governments. By 
discontinuing burdensome penalties, local governments can better 
concentrate their resources to meet the intent of the law in protecting 
our water resources from pollution.
  Mr. President, I see the distinguished chairman of the Environment 
and Public Works Committee on the floor. I know my colleague is aware 
of my amendment, and that it would affect the Environmental Protection 
Agency, which is within the jurisdiction of his committee.
  Mr. CHAFEE. I thank the Senator from South Dakota. The Senator raises 
some understandable concerns regarding the imposition of civil and 
administrative penalties on municipalities working to comply with the 
Clean Water Act.
  As my colleague knows, my committee will soon begin consideration of 
the reauthorization of the Clean Water Act. I believe the Senator's 
proposed amendment is worth considering as part of the Clean Water Act. 
In fact, in August, I intend to hold a hearing to discuss changes to 
the Clean Water Act.
  Rather than offer the amendment to the pending legislation, I invite 
the Senator from South Dakota to testify at this hearing on the very 
issue addressed in his amendment. Further, the Senator from South 
Dakota has my assurance that the Environment and Public Works Committee 
will give his proposal full consideration during its deliberation of 
the Clean Water Act.
  Would that be satisfactory to the Senator?
  Mr. PRESSLER. The suggestions of the Senator from Rhode Island indeed 
are satisfactory. I look forward to testifying before his committee on 
the issue of allowing the waiver of civil and administrative penalties 
for municipalities working toward compliance with the Clean Water Act.
  I would like to emphasize that the National League of Cities, the 
National Association of Counties, and the South Dakota Department of 
Environment and Natural Resources have expressed strong support for my 
proposed amendment. In addition, my amendment is supported by the 
Democratic leader and by the chairman of the Subcommittee on Drinking 
Water, Fisheries and Wildlife.
  My chief concern in seeking to enact this measure is to prevent 
Watertown, SD, from being forced to pay penalties that are accumulating 
while the city is devoting its limited resources to compliance with the 
law.
  Mr. CHAFEE. I understand the distinguished Senator's concerns. I 
recognize that his measure already has bipartisan support and the 
backing of a number of local government organizations. I also recognize 
the strong desire of the Senator from South Dakota to assist the people 
of Watertown. For those reasons, I intend to work with my friend from 
South Dakota and give his proposal full consideration in my committee.
  Mr. PRESSLER. I thank my friend from Rhode Island for his willingness 
to consider this important measure. I look forward to working with him 
to ensure that local governments are treated fairly under the Clean 
Water Act.
  Mr. HATCH. I yield to the distinguished Senator from New Mexico.
  Mr. DOMENICI. Mr. President, within the last 48 hours, I heard a 
story I want to share with the Senate. Two businessmen, who, 15 years 
ago, were working people, got into a business. They worked hard. The 
banks lent them some money. In both cases, they are very wealthy today, 
and they have families. They struggled through 15 to 18 years of hard 
work in businesses.
  One of the most deplorable statements I have ever heard is that these 
two men have both said openly and publicly, ``I do not want my sons to 
go into business. Business is not worth it anymore.'' That is what we 
are talking about here. They did not say that because business was too 
hard for them, but because Government had made it too hard for them, 
and it did not justify their hard work and dedication sufficiently for 
them to want their sons to join and go into the private sector as young 
businessmen and struggle in the American regulatory environment of 
today.
  That is what this evening is about. We are choking that kind of 
enthusiasm. And I can tell you--I do not know if it is widespread, but 
I am frightened to hear it. If it becomes widespread in America, it 
will choke what America needs most--risk-takers, small business people 
who are thrilled enough about it, that they would love to have their 
kids join them and go into business.
  So if we wonder who we are working for--the Vice President's letter 
says ``special interests.'' Whenever there is nothing else to talk 
about, the Vice President or somebody in the White House says, 
``special interests.'' Our special interest is the small business men 
and women in America, who create the jobs, create the wealth. They 
cannot stand it anymore. How much longer do we have to stay on the 
floor before we send them a little hope that 

[[Page S10394]]
what we are doing is not going to continue as it has been? You know, I 
do not think they would believe us anyway. The more they watch what is 
going on here on the floor, I am confident that if any of them did, 
they are even more sure that we do not know whether we are ever going 
to help them or how we are going to help them.


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