[Congressional Record Volume 141, Number 118 (Thursday, July 20, 1995)]
[Senate]
[Pages S10394-S10399]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                   SMALL BUSINESS ADVOCACY AMENDMENT

  Mr. DOMENICI. Mr. President. I am pleased the Senate has accepted my 
small business advocacy amendment to the regulatory reform bill. 
Several issues have been raised relative to this amendment that I 
believe warrant clarification.
  First, a concern has been raised about the issue of timing; that 
small businesses will have input into the regulatory process prior to a 
notice of proposed rulemaking is issued and that other affected 
interests do not have this special treatment. In response to this 
concern, let me quote several findings from the July 1994 ``Small 
Business Forum on Regulatory Reform--Findings and Recommendations of 
the Industry Working Group:''

       The work groups clearly felt that early communication and 
     input from small business owners and other stakeholders would 
     be key ingredients in the achievement of the dual objectives 
     of participation and partnership. . . . Many agencies track 
     in-house, by computer, the progress of all proposed 
     regulations which have reached the drafting stage. Each 
     agency presently prepares and submits to OIRA a regulatory 
     agenda every six months which includes all regulations 
     proposed by the agency.
       Much discussion and deliberation took place in the work 
     groups regarding the earliest date at which input should or 
     could be solicited from stakeholders affected by a proposed 
     regulation. At any given moment in time, there may be 
     hundreds of ideas and concepts afloat in an agency. To 
     solicit input at the very inception of the idea would impose 
     too much of a burden upon the agency and the small business 
     community. Often one, two or even more years pass while a 
     regulation is in the development stage, supporting 
     information is being gathered and analyses are being made. At 
     the same time, waiting until a regulation has been drafted, 
     and a notice of proposed rulemaking [NPRM] has been published 
     in the Federal Register, may result in the loss of the 
     opportunity for stakeholders to provide meaningful input 
     early enough in the process.

  Let me emphasize, the working groups--which included participants 
from the Environmental Protection Agency and the Department of Labor--
met in multiple sessions over a 3 month period of time. A total of 70 
Government representatives participated in the work sessions. The 
report stated that although the interagency groups worked 
independently, their reports reached similar conclusions:

       Their similarity suggests that the problems facing both 
     small business owners and the agencies in the regulatory 
     process may be universal, extending across industry and 
     agency lines. The groups all agreed that a comprehensive, 
     multi-agency strategy, with improved public involvement, is 
     likely to be the most cost-effective way to improve the 
     quality of regulations and to enhance regulatory compliance.

  As the working groups noted:

     . . .waiting until a regulation has been drafted, and a 
     notice of proposed rulemaking [NPRM] has been published in 
     the Federal Register, may result in the loss of the 
     opportunity for stakeholders to provide meaningful input 
     early enough in the process.

  The working groups explored various ways to address the need for 
early input, suggesting an Electronic Regulatory Information Center 
[ERIC] or electronic dockets to advise the most interested parties of 
forthcoming regulatory initatives. These suggestions have considerable 
merit, not only for small businesses but for any others who are 
interested in the impending regulations.
  It is absolutely true that the small business advocacy amendment has 
singled out small businesses as important entities deserving early 
participation in the regulatory process. I believe the specific 
requirements for input, as articulated in the amendment, are wholly 
consistent with existing statutes, various Executive orders, and 
countless studies and reports that require or recommend small business 
collaboration in the process. And, as evidenced by the agency working 
groups in the small business forum on regulatory reform, early 
participation has a beneficial impact on the relationship of the 
stakeholders and the Federal Government.
  I believe I speak for millions of small business men and women when I 
say that a ``partnership'' with their government is what they are 
after, not the present ``adversarial'' relationship. Let us not be 
afraid to change the present system--we know it is not working at its 
optimum. If we need to change the entire system so other affected 
members of the public have a means of voicing their particular concerns 
early in the process, then let us do it. Let us not, however, be 
fearful that early input or early participation by small businesses is 
detrimental to the process or gives them an unfair advantage. Early 
participation is already supported as one of the best ways to address 
potential problems.
  It was my intent, and the intent of those who cosponsored this 
measure, to provide a much-needed mechanism for two federal agencies to 
be able to address what they, themselves, have already recognized as a 
deficiency in the present system: The need for early input for 
information and discussion purposes to make the process more efficient 
and effective.
  I am pleased that this principle of reaching out to affected citizens 
is one with which we seem to all agree. I suggest, therefore, that if 
this mechanism works as we all believe it will, that it may just have a 
positive impact on the way all regulations are developed in the future, 
for all of our citizens who wish to make things work more efficiently 
and effectively. The bottom line is that the regulatory process should 
be a collaborative effort between the public and the Federal 
Government.
  As important, small businesses should not be seen as autonomous, 
faceless, inhuman entities trying to skirt the health, safety and well-
being of their fellow citizens. These are men and women--and in my 
State, the majority of new businesses are small businesses, and the 
majority of those are women-owned businesses--who are trying to make a 
living, with fairness and good business practices. They may hang out 
their shingle as a CPA firm, establish a women's magazine for the local 
community, set up a hardware or supply company, or make salsa to sell 
at the local museum--they all fit the definition of small businesses. 
When there is criticism that the workers may be shortchanged in a new 
regulatory process, I suggest we should consider changing our 
definition of workers. These men and women are workers, and their 
voices are as critical to the process as are, for example, the voices 
of a 20,000-plus member labor union.
  The second issue I want to clarify is that a post-regulation survey 
may be a burden on an agency. I strongly support efforts to reduce the 
paperwork burden on all Americans, including our federal agencies. 
Relative to this survey, I cannot believe that agencies are 
disinterested in how their regulations are working. We, in Congress, 
certainly receive enough inquiries requesting revisions to various 
regulations to know that some regulations need changes. And, we 
certainly know that small businesses find complying with multiple 
regulations imposes an incredible burden on them because a company of 
25 employees must comply with most of the same regulations as a company 
of 1000 employees: this costs time and money a small company often does 
not have.
  To better understand the impact of a major regulation on small 
entities, a survey will provide vital information as to how well it is 
working and whether there are ways to adjust the regulation to meet 
changing circumstances or needs. Why should such a survey be a burden 
or incur a frightening scenario to an agency? The agency does not have 
to be involved with the survey --it will hire a firm to conduct the 
survey and provide its findings. And, there is nothing in this 
amendment that mandates a small business must respond to a survey or 
that the agency must adhere to any of its findings. In fact, from all 
of the information I have received from the New Mexico Small Business 
Advocacy Council--which I established 2 years ago--and other small 
business suggestions, small businesses would love the opportunity to 
provide an assessment of how a regulation is working, either pro or 
con.
  Mr. President, I and others have been listening to the men and women 
in our 

[[Page S10395]]
States who have said there is a problem with the regulatory process. In 
effect they have been telling us in every possible way they can that 
they need to be a participant in this process; they would like to offer 
suggestions that will make regulations work better; that they have some 
common sense suggestions that can make the regulatory process a 
participatory one. But, there is no mechanism that provides an informal 
way of getting their message out. Everything is complicated. Everything 
is rigid. And, nobody cares.
  We are offering a possible solution so that the voices of millions of 
men and women-owned small businesses can be heard. We are offering a 
mechanism for a question and answer survey to be conducted that may 
provide some meaningful insights as to how regulations, including, for 
example, how health and safety standards can be better implemented.
  I am proud of this amendment. I do not believe the majority of 
Americans are fearful of this approach; it is an inventive one that we 
hope is responsive to legitimate concerns.
  I believe the revisions worked out prior to the amendment's 
acceptance helped clarify its intent. I hope we can wholeheartedly 
embrace this innovative approach to ``hearing'' from our American men- 
and women-owned small businesses. Their voices--their counsel and 
advice--can help make our regulatory process more responsive and 
workable. Everyone will benefit.
                   sound science and risk assessment

  Mr. DOMENICI. Mr. President, I would like to register a small 
historical footnote during the debate on the regulatory reform bill. 
During consideration of the Clean Air Act Amendments in 1990, Senator 
Dole and I started to ask questions about how the Environmental 
Protection Agency did risk assessments and what those risk assessments 
meant.
  We and many of our colleagues were surprised, and somewhat 
incredulous, as we learned that these risk assessments involved 
unrealistic assumptions about human exposure and overly conservative 
assumptions multiplied by other overly conservative assumptions. I 
still refer with wonderment--and I know Senator Dole does this as 
well--at the so-called mythical man standing at the fenceline breathing 
a pollutant continuously for 70 years, never bothering to leave for 
work or to raise a family--or even move 20 feet away.
  As a result of this inquiry, we established under the Clean Air Act a 
Commission on Risk Assessment and Management to advise the Congress and 
the administration on appropriate principles of risk before the 
residual risk section of the air law takes effect. We also commissioned 
the National Academy of Sciences to do a report on current risk 
assessment practices. That report, entitled ``Science and Judgment in 
Risk Assessment,'' was issued last year, and contained a number of 
criticisms in the way that the Environmental Protection Agency 
presently conducts its risk assessments during rule promulgation.
  As a result of this activity, I sought and got an amendment during 
reauthorization of the Safe Drinking Water Act last year that would 
have required regulations issued under that act to be based on the best 
available peer-reviewed science. Such good science was clearly needed 
with regard to the operation of the Safe Drinking Water Act. For 
example, EPA has consistently proposed a minimum contaminant standard 
for radon in drinking water which could cost water systems upward of 
$12 billion in capital cost alone, even though EPA's own Science 
Advisory Board criticized that standard for not focusing limited 
resources on more important risks.
  My good science amendment was a specific remedy in one law. But I 
believe that there is an urgent need for realistic and plausible 
exposure scenarios and sound science in all risk assessments. I am 
pleased, therefore, that the Dole bill requires that risk assessments 
be based only on the best available science, a basic requirement which 
has been sorely needed for far too long.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. How much time is left?
  The PRESIDING OFFICER. The Senator from Utah controls 8 minutes. The 
Senator from Ohio has 4 minutes.
  Mr. JOHNSTON. Will the Senator yield me 2 minutes?
  Mr. HATCH. I would like to yield the last 2 minutes to the 
distinguished Senator from Louisiana, if I can. First, I will yield 
myself all but the last 2 minutes. I would like to have notice when 6 
minutes is used.
  I really have to say that I am very upset right now with some of the 
arguments that I have heard from the other side, because they could not 
have read this bill, could not understand the concessions that we have 
made time after time, day after day, meeting after meeting, hour after 
hour, and make the statements that were made today.
  Some on the other side are so worried about subjecting the 
bureaucracy to too many ``hoops,'' that they forget the American public 
out there and how many hoops they have to jump through.
  Let me tell you, we are being regulated to death in this country. 
What about the hoops that the American citizens have to jump through 
because of a bureaucracy inside this beltway that does not consider 
their needs and enacts silly, stupid, dumb regulations that are 
wrecking our country. On this bill, we have had it with some in the 
media, who continue to completely misrepresent, in the most despicable 
way, what this bill means.
  I assure you that we would not have some of these Senators voting for 
cloture today if they thought for a minute that some of these 
representations were true. Now, we do not believe that the latest 
Kerry-Glenn proposals are right. They not only do not address our 
offers made on Tuesday, which were made to meet both side's concerns, 
in words that we thought we had agreed on in the meetings; but then 
their counteroffer significantly expands the areas of disagreement by 
adding new issues. That is what we have been going through the whole 
time. We get to where we think we have it, and the next thing you know, 
10 more issues are on the table.
  Let us worry a little more about the American people. This bill takes 
care of providing that the best science will be applied, and that the 
right decisions will be made, and that the bureaucracy will have to be 
accountable for the first time in the history of this country. This is 
one of the most important bills in the history of this country because 
it means getting the status quo, the overwhelming, unthinking 
bureaucracy, off of our backs and makes them become more responsible to 
issue good regulations, rather than bad, based upon the best science 
available.
  It gets the American public from underneath the horrendous burden of 
unnecessary, silly, and dumb regulations. If there is a funeral, to use 
the metaphor used by one of my colleagues, it is ``a funeral for common 
sense'' if we do not pass this bill. If there is a funeral on the other 
side of that quotation, then it is the celebration of the status quo. I 
would have to say that most of the opponents of this bill have not even 
read it.
 They could not have read it and made some of the comments that they 
made.

  We have tried and we have worked very, very hard to bring people 
together. We have been criticized--Senator Roth and I, in particular--
we have been criticized by people on both sides of the aisle. Our goal 
is to bring together the best bill we can, that will stop some of the 
overregulatory killing that is happening in this country today.
  We think we are there. That does not mean if we invoke cloture that 
we will not continue to work to try and satisfy our sincere colleagues 
on the other side, not the least of whom is Senator Glenn, who has 
worked very hard to try and resolve this. I know he is very dedicated, 
and sincerely so, to resolve these problems. There are a number of 
others who are as well, and I want to pay tribute to them.
  This is a key vote for small business. Every small businessman in the 
country has to be watching this vote. I have to say even harmonized reg 
flex has cost-benefit criteria. We have done so much to try and make 
this bill acceptable to both sides. I think it should be acceptable. We 
will continue to work, but I think we need to invoke cloture. It seems 
to me the time is now. We have waited long enough. Frankly, it is time 
to do this.

[[Page S10396]]

  The other side is so worried about subjecting the bureaucracy to too 
many hoops. What about the American public? What about the hoops that 
the American public has to go through to satisfy the horrendous burden 
of regulation?
  If this is a funeral for common sense and a celebration of the status 
quo, most of the opponents of this bill have never read it.
  We believe that the latest Kerry-Glenn-Levin proposals not only do 
not address our offer made Tuesday in good faith to meet that side's 
concerns, but significantly expands the areas of disagreement by adding 
new issues.
  First and foremost, the proposal to strike the decisional criteria 
section and replace it with a certification process is unsatisfactory. 
The decisional criteria section is at the heart of Dole-Johnston 
because it is the mechanism that both sets the standard for cost-
benefit analysis and assures that the analysis is done by the agencies. 
We believed that their side had agreed to the concept of a decisional 
criteria section, but that the language of the standard needed to be 
negotiated. Their proposal to strike this section constitutes the most 
significant area of disagreement.
  Other significant areas of disagreement include their proposal to 
limit the reasonable alternatives that an agency must disclose in a 
rulemaking to three or four. While the number of options for a 
particular rulemaking may be small, in certain circumstances it may be 
greater, and disclosure of all relevant options is necessary for 
effective public participation in the rulemaking process and for 
judicial review.
  We also object to the elimination of the petition processes. The 
right of the American people to petition their government is a 
fundamental constitutional right. We believe that Congress has a duty 
to assure the efficacy of this right. Consequently, we object to the 
deletion of these provisions from S. 343. As to eliminating the 
petition for review of a major rule, we believed that we had already 
reached an agreement to keep this provision as part of the agency 
review of rules section and are disappointed and somewhat surprised at 
your suggestion to eliminate it. As to the section 553(l) petition 
process for nonmajor rules, the suggestion to strike this subsection 
will render this longstanding APA petition process virtually useless. 
This is because the section 553(l), for the first time, establishes an 
18-month time limit for agencies to answer the petitions. The lack of a 
time limit has rendered the present APA petitions moribund.
  Other significant areas of disagreement with their most recent 
proposal includes striking TRI, the Delaney Clause reformation, and the 
section 707, the consent decree reform provision.
  Furthermore, new issues have been raised for the first time which 
makes closure even more difficult. These include weakening the 
regulatory flexibility judicial decisional criteria, and, as stated 
above, the limiting of the reasonable alternative requirement to a few 
options. The raising of these new issues contravenes our understanding 
that we had just a limited universe of four items--decisional criteria, 
judicial review, sunset, and petitions--to negotiate. Obviously, we 
cannot continue these negotiations forever; we have already in good 
faith made over 100 significant and technical changes to the bill.
                   changes we are proposing to s. 343

  First, judicial review. Language is changed in section 625 to clarify 
that there is no independent review of the procedures of the bill, but 
that judicial review will be of the rulemaking file as a whole under an 
``arbitrary and capricious'' test.
  Second, decisional criteria. Further language is suggested to clarify 
that there is no supermandate in the decisional criteria section; and 
adopt the greater-net-benefits test.
  Third, section 553(1) petition. Strike language providing for 
petition of interpretive rules and guidance documents.
  Fourth, section 623 petition--agency review. Add requirement that the 
court, to the extent practicable, shall consolidate petition review in 
one proceeding.
  Fifth, reg flex. Amend section 604, subsection (c) of title 5 to 
change the standard to one of compliance burdens.
  Sixth, substantial support test. Strike substantial support test in 
section 706.
  Seventh, sunset. Adopt language of Glenn-Chafee substitute on sunset.
  I ask unanimous consent to have printed in the Record a letter and 
attachment on this subject.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, July 20, 1995.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, Russell Senate Office 
         Building, Washington, DC.
     Hon. William V. Roth, Jr.,
     Chairman, Committee on Governmental Affairs, Hart Senate 
         Office Building, Washington, DC.
     Hon. J. Bennett Johnston,
     Ranking Member, Committee on Energy and Natural Resources, 
         Hart Senate Office Building, Washington, DC.
       Dear Orrin, Bill and Bennett: We have received your letters 
     dated July 19, and are pleased to see progress on several of 
     the key regulatory reform issues. As you know, however, our 
     July 18 list of major issues was a package, and several of 
     our key issues were not addressed in your letters.
       Attached is a list of amendments we need included in our 
     package of amendments. This list represents a revision of our 
     July 19 proposed amendments. The major issues are as follows:
       First, we cannot accept a bill that provides new 
     opportunities for litigation, or delays or stops needed 
     health, safety, or environmental protections. We have always 
     opposed the new judicially reviewable petition processes 
     contained in Dole/Johnston, which will result in bureaucratic 
     gridlock and excessive litigation. Glenn/Chafee contains a 
     workable review process. In the interest of compromise, the 
     attached amendments would modify the Glenn/Chafee review 
     process in order to provide for judicial review of the agency 
     schedule and for review of major free-standing risk 
     assessments. Your proposal to accept the Glenn/Chafee action-
     forcing rulemaking provision, as opposed to an automatic 
     sunset, is an important, positive step. It does not, however, 
     address our concerns about the new petitions and the review 
     process.
       Second, our July 19 offer included cost-benefit analysis, 
     but not a new and inflexible decisional criteria. While your 
     counteroffer proposed a revision to the decisional criteria 
     that we are willing to consider, continuing concern about the 
     effect of decisional criteria recommend that we discuss this 
     issue further before making any final decisions.
       Third, with regard to judicial review and unwarranted 
     litigation, we propose a variation on standards for judicial 
     review. The elimination of the interlocutory review language 
     in Dole/Johnston sec. 625(e) is a good step, and we assume 
     this includes the elimination of the Reg Flex interlocutory 
     appeal provisions. Also, the elimination of the ``substantial 
     support'' language in Dole/Johnston sec. 706(a)(2)(F) is a 
     welcome change.
       Fourth, on the subject of special interest issues, while we 
     continue to believe that it should not be included in the 
     legislation, we are certainly willing to discuss the Toxic 
     Release Inventory. We remain equally concerned with the other 
     special provisions we have identified, as well.
       Finally, important issues not addressed in your July 19 
     letters include a limitation on ``reasonable alternatives,'' 
     a future effective date, a limitation on extension of 
     deadlines, the number and scope of rules covered under the 
     law, and revisions to the Regulatory Flexibility Act. The 
     specific language and/or filed amendments for each of these 
     issues is contained in the Attachment.
       While we are pleased to see progress on key regulatory 
     reform issues, each of these issues is part of a package. We 
     are not able to accept proceeding with any of these as 
     individual amendments without addressing the package as a 
     whole. We hope you will look closely at this letter and the 
     attached language, and respond to us. Working together in 
     this way, we are confident that we can develop a regulatory 
     reform proposal that can be accepted by the vast majority of 
     our colleagues. We look forward to hearing from you.
           Sincerely,
     John Glenn,
     Carl Levin,
     John Kerry.
                                                                    ____

   Specific Language, 7/20 Response to 7/19 Roth/Hatch and Johnston 
                                Letters

       1. Decisional criteria.
       A. Discussion needed on decisional criteria standards and 
     relation to underlying statutes.
       B. Limit alternatives agencies must consider to a limited 
     number of alternatives.
       C. Strike regulatory flexibility decisional criteria and 
     replace Regulatory Flexibility Act judicial review (Glenn 
     Amendment #1656).
       2. Litigation opportunities.
       A. Strike petition processes (Levin Amendment #1648):
       On page 11, strike lines 5 through 19.
       On page 12, strike lines 9 through 12.
       On page 59, strike line 10 and all that follows through 
     page 60, line 23.
       On page 44, strike line 14 and all that follows through 
     page 46, line 4.
       B. Standards for Review: 

[[Page S10397]]

       Offer--revise D/J s. 625(d):
       ``(d) Standards for Review.--In any proceeding involving 
     judicial review under section 706 or under the statute 
     granting the rulemaking authority, failure to comply with 
     this subchapter or subchapter III may not be considered by 
     the court except for the purpose of determining whether the 
     final agency action is arbitrary and capricious or an abuse 
     of discretion (or unsupported by substantial evidence where 
     that standard is otherwise provided by law).''
       Response--substitute the following:
       ``(d) Standards for Review.--In any proceeding involving 
     judicial review under section 706 or under the statute 
     granting the rulemaking authority, the information contained 
     in any cost-benefit analysis or risk assessment required 
     under subchapter II or III may be considered by the court as 
     part of the administrative record solely for the
      purpose of determining whether the final agency action is 
     arbitrary, capricious, or an abuse of discretion. The 
     adequacy of compliance or the failure to comply with 
     subchapter II or III shall not be grounds for remanding or 
     invalidating a final agency action, unless the agency 
     entirely failed to perform a required cost benefit 
     analysis or risk assessment.''
       C. Interlocutory Review:
       Offer--strike D/J s. 625(e).
       Response--Accept, provided that this includes striking the 
     Nunn/Coverdell Reg Flex interlocutory review provisions.
       D. Scope of Review:
       Offer--strike D/J s. 706(a)(2)(F) re: ``substantial support 
     in the rulemaking file''.
       Response--Accept.
       3. Agency review of rules.
       Offer--Replace Dole/Johnston sec. 623(i) with Glenn/Chafee 
     sec. 625(g) language re: agency initiation of rulemaking to 
     repeal a rule.
       Response--Judicially reviewable petitions for review are 
     unacceptable. Substitute G/C sec. 625 for D/J sec. 623 with 
     changes as proposed in 7/19 follow-up to the 7/18 ``Proposed 
     Package'', i.e.:
       A. Strike sec. 625(c), and insert in lieu thereof:
       ``(c) Agency decisions regarding deadlines for review of 
     rules contained in a schedule issued pursuant to subsection 
     (b) shall not be subject (b) shall not be subject to judicial 
     review.'' [COE95.845--p. 18, 1. 4-10];
       B. Strike sec. 625(h)(2) [COE95.845--p. 21, 1. 22-25 as 
     modified];
       C. Insert a new subsection at the end of sec. 625:
       `'(i) For purposes of this section, the term ``rule'' shall 
     include a risk assessment, not associated with a rule, that 
     has an effect on the United States economy equivalent to that 
     of a major rule.'' [COE95.845--p. 21].
       4. Special interest sections--Strike relevant sections: 
     e.g., Lautenberg #1574 (TRI), Glenn/Levin #1658 (consent 
     decrees), Kennedy #1614 (Delaney), and Kennedy food safety.
       5. Other.
       A. Provide for a reasonable future effective date of 180 
     days after enactment (Glenn Amendment #1657).
       B. Limit the extension of statutory and judicial deadlines 
     (to allow agencies time to implement new regulatory process 
     requirements) to 2 years (Chafee Amendment #1591).
       C. Limit the number of rules covered by the legislation 
     under the Nunn/Coverdell amendment.

  Mr. GLENN. I yield such time to the Senator from Michigan as he may 
need. The Senator from Michigan came here, and his No. 1 item was to 
see if we could not get into regulatory reform. He was president of the 
city council in Detroit and had so many programs, and he has been 
working on it since he has been here.
  I yield to him for a parliamentary inquiry.
  Mr. LEVIN. I make the parliamentary inquiry, Mr. President, that if 
cloture were invoked, are amendments which are relevant, according to 
the unanimous consent, in order or out of order, if, while they are 
relevant, are not technically germane.
  The PRESIDING OFFICER. The relevant standard is considerably broader 
than the germaneness standard, so they would not be in order.
  The PRESIDING OFFICER. The Senator from Ohio has 3 minutes and 16 
seconds.
  Mr. HATCH. May I make a parliamentary inquiry on my time? Is it not 
true that both sides can agree post-cloture and add language to the 
bill?
  The PRESIDING OFFICER. Only by unanimous consent.
  Mr. GLENN. Mr. President, we all want sensible regulatory reform. I 
want regulatory reform as badly as anybody here. We have worked on it 
for years in our committee, the Governmental Affairs Committee, but I 
want balanced regulatory reform, not regulatory reform slanted so much 
that anybody that objects to a particular regulation coming out could 
tie it up in courts in judicial review for almost an unlimited period 
of time.
  We have negotiated in good faith on this, back and forth, and I am 
sorry we have to go to another cloture vote on this because contrary to 
what has been said here, we have made a lot of progress. We did not 
have time enough to go through all of it.
  Mr. President, S. 343, the Dole-Johnston bill, does not fix the 
problem. It was quoted a moment ago that President Clinton said the 
American people deserve a system that works for them. We do not have 
such a system today. I submit that S. 343 does not give that balanced 
system either.
  The President has taken initiatives on this and already cut out 1,200 
pages of regulation out of 13,000 pages reviewed. So they are working 
hard at making corrections. We do not need a bill that does nothing but 
provide regulatory favoritism. That is all we can call this, when they 
insist on keeping in such things as provisions gutting the toxics 
release inventory that protects people around plants, and so on. That 
is just not right that we pass something like that.
  We, in good faith, submitted another proposal this afternoon. We 
gradually, one by one, as proposals have been sent back and forth 
between the two sides, have worked out a lot of our differences, and 
this is one of the most complicated bills, one of the most complicated 
pieces of legislation that we can have, because it refers to so many 
aspects of law. It affects every man, woman, and child in this country.
  In that respect, I ask unanimous consent that the article out of this 
week's issue of Newsweek called ``Of Helmets and Hamburger'' be printed 
in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                        Of Helmets and Hamburger


              congress: deciding what you eat and breathe

       Soon after Lori Maddy moved into her Sedgwick County, 
     Kans., farmhouse in 1982, she noticed that wind blowing from 
     the direction of the nearby Vulcan Chemicals plant carried a 
     smell like ``the inside of an inner tube.'' So Maddy joined 
     with neighbors to ask Vulcan what, exactly, it was venting. 
     None of your business, Vulcan replied. Then came a 1986 law 
     requiring companies to report--not stop, just report--their 
     toxic releases. Vulcan turned out to be spewing 50 percent of 
     Sedgwick's total emissions, including carcinogens. Spurred by 
     local outrage, Vulcan voluntarily reduced its pollution by 90 
     percent. ``We felt obligated,'' says plant manager Paul 
     Tobias, ``to win back the public's trust.''
       The Toxics Release Inventory (TRI) seems to be a smart way 
     to reduce pollution, but Congress has put TRI and every other 
     federal health, safety and environment rule in the 
     crosshairs. The House passed a strong regulatory-rollback 
     bill in February. Last week the Senate fought over whether 
     it, too, would (pick one) ``wage a full frontal assault on 
     the American people and their environment,'' as Environmental 
     Protection Agency chief Carol Browner put it, or ``take the 
     heavy hand of the federal government out of people's lives,'' 
     as GOP Sen. Olympia Snowe of Maine said.
       Washington is already well down the road to deregulation. 
     Congress is moving to free the states to raise speed limits 
     and eliminate the requirement that motorcyclists wear helmets 
     (table). The U.S. Fish and Wildlife Service wants to exempt 
     small-property owners from the Endangered Species Act so they 
     can build on their land even if that damages the habitat of a 
     rare breed. EPA and the Occupational Safety and Health 
     Administration no longer fine first offenders. But the 
     House's antireg bill, and now the leading Senate version, are 
     much broader, affecting anyone who eats meat, drinks water or 
     breathes:
       Meat: Bob Dole, sponsor of the Senate bill, wants to 
     deliver regulatory relief this year. But smack in the middle 
     of the Senate debate came news that five children in 
     Tennessee had gotten E. coli poisoning, which comes from 
     contaminated hamburger. Such outbreaks, say consumer groups, 
     will become even more common if Dole gets his way. In its 
     current form, they charge, the
      Dole bill requires federal agencies to prove by extensive 
     analysis that any proposed rule--including better meat 
     inspection--is the cheapest way to protect the public. 
     Showing that the rule's benefits (avoiding 4,000 deaths, 5 
     million illnesses and up to $3.7 billion in medical costs 
     a year) are greater than its cost to industry ($245 
     million a year) wouldn't automatically be good enough. 
     Dole disputes this, but there's no doubt that under his 
     plan industry could sue to overturn the rules on much 
     weaker grounds than current law allows. Dole, says Adam 
     Babich of the Environmental Law Institute, is trying to 
     solve ``the problem of too much bureaucracy by adding 
     bureaucracy. It would flunk its own cost-benefit test.''
       Air and water pollution: If the GOP proposals had been law 
     in the 1970s, some regulations on air and water quality might 
     never have made it. The cost-benefit analysis of banning lead 
     in gasoline, for example didn't clearly show that it would 
     spare children 

[[Page S10398]]
     much neurological damage. EPA went ahead anyway, and subsequent 
     research shows that the lead phaseout cut blood lead levels 
     far more than EPA expected. The GOP's new plan would also 
     affect existing regs on how much pesticide and fecal bacteria 
     can be in drinking water. Rules would automatically expire 
     every five to 10 years unless an agency reanalyzed (and, 
     possibly, relitigated) them.
       Republicans respond with horror stories of regulators run 
     amok. Some are hyped, but many are not. Limits on how much 
     chloroform from paper mills may pollute drinking water, they 
     say, cost $99 billion per year-of-life saved. Even Clinton 
     has a bit of regulation-cutting religion; he's eliminated 
     hundreds of silly federal rules. But more rollback seems 
     inevitable. Ironically, it's coming at a time when GOP budget 
     cutting--EPA is look at a 40 percent hit--will make it even 
     tougher for agencies to meet the stiffer requirements for 
     justifying rules. But maybe that's the idea.
                      regulations go on the block

       Washington appears determined to review, and in some cases 
     dismantle, health and safety rules. The results will affect 
     everything from beef to how fast you can drive.

------------------------------------------------------------------------
       Status quo                GOP plan            Democratic retort  
------------------------------------------------------------------------
Inspectors ``poke and    The Senate bill would    The GOP plan would    
 sniff'' for spoilage,    require the USDA to      delay reasonable     
 but 4,000 people a       prove that the           reforms that would   
 year die anyway. USDA    benefits of its new      save hundreds from   
 proposes more            inspection system        dying and millions   
 scientific methods.      outweigh the costs.      from getting sick    
The United States        The Senate voted to      The government        
 imposes a cap of 65      drop all federal speed   estimates that up to 
 mph on rural             limits and let states    4,750 more traffic   
 interstates and 55 on    set their own caps.      deaths could occur   
 most others.             Bikers may go            each year without    
 Motorcyclists must       bareheaded.              federal speed limits 
 wear helmets.                                                          
The EPA regulates        The EPA would have to    Lawsuits could delay  
 pollutants from lead     choose the cheapest      new regulations for  
 in gasoline to fecal     way to reduce            years, and even      
 bacteria in water.       pollution risks.         existing rules would 
 Cost is secondary or     Industry could then      be vulnerable to     
 not considered at all.   challenge the rules in   court challenge      
                          court.                                        
Department of            Federal officials would  Detroit always        
 Transportation's         have to submit all       challenges federal   
 design and safety        past and future safety   safety rules; under  
 standards, including     rules to a detailed      the GOP bill it would
 airbags and crushable    cost-benefit analysis.   prevail more often,  
 front ends, save lives.                           and more lives could 
                                                   be lost              
------------------------------------------------------------------------

  Mr. GLENN. Mr. President, it details some of the problems involved, 
and I wish we had time to read it in the Record. It puts it very well, 
that what we are doing here is not only providing regulatory reform if 
we pass the Dole-Johnston bill, we are providing the possibility of 
rolling back health and safety laws developed over the last 25 years 
that have proven invaluable, have provided for better health, have 
provided for better safety for our own citizens. We do not want to take 
a chance of rolling that back.
  The bill that I proposed, known as the Glenn-Chafee bill, was one 
that hit a real balance. We provided redress for these regulatory 
excesses, and we all agree that there are regulatory excesses. They are 
all over the place. We hear about these every time we go back home.
  We correct them, but we correct them in the right way, providing a 
process that cannot be used to override the system, cannot be used to 
overflow the system, cannot be used to swamp the system.
  That is what S. 343 has the potential of doing. We want regulatory 
reform. We want regulatory reform as badly as anybody. I am sorry we 
cannot continue this negotiation today. I hope our colleagues will not 
let cloture be invoked and will vote against it so we can continue with 
these negotiations.
  Mr. HATCH. Mr. President, just to make one point, if we invoke 
cloture tonight, this Senator is going to work with the other side. I 
know the Senator from Delaware will. I know the distinguished Senator 
from Louisiana will.
  On all relevant amendments, we will work on those with them, and what 
we can agree on we will put in by unanimous consent. I just want people 
to understand that.
  This cloture vote is very, very important. It has a lot to do with 
whether we will ever get regulatory reform.
  I yield the balance of my time to my colleague from Louisiana.
  The PRESIDING OFFICER. The Senator from Louisiana has 2 minutes and 
20 seconds.
  Mr. JOHNSTON. Mr. President, we have had a lot of talk here on the 
floor about good faith and negotiation, and there has, in fact, been 
good faith and good negotiation by both sides.
  Believe me, Mr. President, the majority leader has yielded and 
yielded and yielded, and I have given a list of those things he has 
yielded. There was some progress made on the bill.
  Mr. President, ultimately there are a few basic differences. Really, 
three in number. A lot of small ones, but three basic differences on 
this bill that constitute a wide chasm and a wide gulf.
  Now, the first is whether we can question existing rules. I have 
heard it said you could. Mr. President, let me read what the Glenn 
substitute says. The Glenn substitute says, ``The head of the agency, 
in his sole discretion, picks what is to be reviewed.'' In his sole 
discretion. When you get around to a review, it says, ``judicial review 
of the agency action taken pursuant to these requirements shall be 
limited to review of compliance or noncompliance with this section.'' 
You review at the sole discretion of the head of the agency.
  Now, Mr. President, if that is a right to challenge an existing 
regulation, then I am not a U.S. Senator, because, Mr. President, it is 
no right at all. It is business as usual.
  The head of the agency has that discretion right now. If you want to 
keep things exactly as they are, then vote against cloture. I say vote 
for the Glenn amendment. We have already voted for the Glenn amendment 
once and it went down. It constitutes the bureaucrats preservation act, 
because it keeps things exactly as they are.
  Mr. President, we can make more progress in negotiation if cloture is 
voted, but unless we have an end to this process, Mr. President, there 
is an end to this bill. I believe strongly in this bill. I hope we will 
get cloture. I hope we can get an act passed.
  Mr. DASCHLE. Mr. President, I understand that all time has expired, 
so I will use part of my leader time to comment briefly on the pending 
resolution.
  I note that my colleagues have made the case very well. Those who 
have preceded me in opposition to this cloture motion, I think, have 
made the case that I would simply like to summarize prior to the time 
we come to a vote.
  The first and most important point is that this vote is unnecessary. 
There is no effort to filibuster. No one is delaying final passage on 
this bill. No one is trying to stop us from coming to a conclusion on 
this legislation. There has been a sincere attempt, by virtually every 
Senator involved in this debate, now for several weeks, to try to 
improve the legislation and accommodate the very difficult points that 
have been raised and in many cases resolved as a result of those 
negotiations. So that is point No. 1; no filibuster.
  Point No. 2, there has been, as my colleagues have indicated, 
substantial progress since the day we began this effort several weeks 
ago; substantial progress. Senator Kerry, Senator Chafee, Senator 
Glenn, Senator Levin, and Senator Johnston on our side have all 
indicated that progress, as a result of these negotiations, has been 
real. And I think the latest testament to the fact that progress is 
being made is what the Senator from Rhode Island has just announced. As 
a result of the efforts in the last 24 hours, he, too, has been able to 
get additional concessions as a result of these negotiations, 
concessions that would not have been made were we not at this point in 
this deliberative process, concessions that we have been talking about 
now for some time. So, with each stage in the development of this 
debate, additional progress has been made up until this very afternoon.
  Point No. 3, from the outset we have laid out some principles that we 
say are essential to a good bill. They are very simple.
  First and foremost, we have to have a bill that does not roll back 
laws that have provided cleaner air, purer water, and safer food.
  Second, we will not support a bill loaded with special interest 
fixes.
  Third, we will not have a bill that results in an avalanche of 
litigation from hundreds and hundreds of lawyers.
  That is it. Those are our principles. We are guided by those and it 
is in that effort to maintain our allegiance to those principles that 
we continue to negotiate in good faith. I believe those concerns have 
not yet been adequately addressed. I believe equally as strongly, 
though, that we can get there. I believe the Glenn-Chafee bill would 
have gotten us there, and 48 Senators agreed with us on that matter. 
But most important in the statement, I want to emphasize right this 
minute: We are willing to continue to go into that room, continue to 
work, continue to work out the differences, as has been the case now 
for several days.
  Finally, let me make a point about the issue raised by the 
distinguished Senator from Michigan. If, indeed, we are going to come 
to closure on this 

[[Page S10399]]
bill, one of the most important things we have to do is ensure that 
those Senators who have amendments that are relevant but not germane 
can be protected. Regardless of whether or not we come to closure in 
the next couple of days on this bill, it is very important that those 
who want to make additional contributions to this legislation, to try 
to improve the bill with or without negotiations that may or may not 
come to any fruitful conclusion, they ought to be protected in their 
right to offer those amendments and have them successfully debated and 
ultimately voted on. A vote against cloture ensures that they will have 
that right, and I think it is very, very important that everyone 
understand that.
  So, I think, in essence, the message is very simple. A vote against 
cloture is a vote for progress, progress that has been demonstrated 
over and over again as we have resolved these differences and as we 
continue to work for final passage, as we continue to guarantee that 
the principles we laid out at the very beginning can be protected.
  I am optimistic that we can achieve that. I believe we can continue 
to work in good faith to accomplish what remains. And I believe voting 
against cloture today is the fastest way to get there.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. DOLE. Mr. President, I will just take a minute or two because I 
know we have had a lot of debate here and we have had a lot of 
negotiations. In fact, we have been negotiating since April. This is 
about the 10th day now on this bill.
  I think what we have forgotten--we keep talking about we have to 
satisfy this Senator, that Senator--somewhere out there some small 
business man or woman or farmer is saying, what are these people doing 
in the U.S. Senate? We have been on this bill 10 days. We had about 2 
weeks of negotiation before that. We have made over 100 changes. When 
do we stop? When we satisfy every liberal Senator on the other side of 
the aisle? Then you could not find the rest of us voting for it.
  I note in the latest offer they made they say, ``We are not able to 
accept proceeding with any of these as individual amendments without 
addressing the package as a whole.'' So you take this package, then 
tomorrow you will have another package, oh, just four or five more 
things we thought of or the staff thought of or the administration 
thought of or the bureaucrats thought of.
  It is one thing to say we are for regulatory reform. But we are not 
going to have it unless we have cloture. So the moment of truth is 
about to arrive. The moment of truth is about to arrive. I have heard 
all the speeches. I have listened to the speeches. I suppose everybody 
wants some vague regulatory reform. But by the time we adopt every 
amendment we have had proposed by some of my colleagues, we would not 
have regulatory reform. We would satisfy the bureaucracy, which is 
apparently what some wish to do. The Senator from Louisiana just read a 
piece of the Glenn bill, ``in sole discretion.'' They make the 
determination.
  So I hope my colleagues will understand, we have a lot of work to do 
this year. In fact, we just voted earlier today on an amendment, I 
think it had regulatory reform in it. I think the vote was 91 to 8--91 
people voted for this broad bill that had regulatory reform, tax 
reform, grazing reform, all the reforms we could think of; 91 to 8 
voted for it. So there ought to be 91 votes for cloture.
  I just hope my colleagues--we have made a lot of progress. Every 
Republican will now vote for cloture. That is up from about 49; now it 
is 54. But we cannot get there alone. I tell the American people, we 
cannot have regulatory reform without at least a half dozen on the 
other side. It is not possible to satisfy the concerns of some. It is 
never possible in any legislation.
  I do not know what a filibuster is, but it seems like after a couple 
of weeks we ought to make some decisions. There are a lot of amendments 
filed, relevant, germane. There are still opportunities to improve this 
bill after cloture is invoked. Some of these things, in my view, we 
ought to just say, ``If we cannot reach an agreement, there ought to be 
an up-or-down vote.'' We would win some, the other side would win some, 
but at least we would have some resolution.
  So I urge my colleague, particularly on the other side of the aisle--
and I know you are under extreme pressure. I know the little sweatshop 
is working right outside the corridor here. I know there are a lot of 
people coming out there with arms that are hurting. Some have slings. I 
know the pressure is great, all the way from the White House, the 
President, the Vice President, every bureaucrat in town is concerned 
about this bill because they do not want it to happen.
  I think it is time we just, in the next 20 minutes, think about the 
American people during the vote--people in Kansas, Rhode Island, 
Georgia, Virginia, New York--wherever. So, before we cast our vote--
Oregon. Anybody else who is here. We are all one big country. It is 
going to be one big vote.
  I thank my colleagues.

                          ____________________