July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9653 also serves as a valuable resource to the Army (in the case of a violation of sec- Mr. President, back to the pop quiz: the domestic and international copy- tion 404), or the State determines that the How many million in a trillion? There right communities. The Office registers unit of local government is not carrying out are a million million in a trillion. almost 600,000 works a year. the compliance plan in good faith. ‘‘(3) OTHER ENFORCEMENT.—A waiver of f Copyright has been a critical element penalties provided under paragraph (1) shall of American creative and economic life not apply with respect to a violation of any THE 50TH SITTING BULL since the beginning of our Nation. provision of this Act other than the provi- STAMPEDE Today, our core copyright industries sion that is the subject of the agreement de- Mr. PRESSLER. Mr. President, last have become an increasingly important scribed in paragraph (1)(A).’’. week marked the 50th Annual Sitting part of our national economy and a Bull Stampede in Mobridge, SD. People major area of our international trade WASHINGTON, DC, June 27, 1995. from across the State and Nation relationships. We in the Congress must DEAR COLLEAGUE: When the Senate begins joined together in celebrating a long- continually ensure that the basic prin- consideration of S. 343, the Regulatory Re- standing tradition which first began in ciples of copyright remain applicable form Bill, I intend to offer an amendment to 1946. The stampede has a long and to a scientific and creative world in lift the unfair burden of excessive civil pen- colorful history, and it serves to re- which technology changes very rapidly. alties from the backs of local governments mind people of South Dakota’s proud I would like to join the Librarian and that are working in good faith with the heritage. the Register in saluting the work of Clean Water Act. Under current law, civil penalties begin to It is appropriate that the Sitting the Copyright Office and its staff on accumulate the moment a local government Bull Stampede is named after the this day and in paying tribute to the violates the Clean Water Act. Once this hap- famed Sioux leader. The multicultural important services they provide in pens, the law requires that the local govern- diversity of the event recognizes the keeping our copyright system strong ment present a Municipal Compliance Plan contributions of both native Americans and adaptive to change. for approval by the Administrator of the En- and non-native Americans to South f vironmental Protection Agency (EPA), or Dakota in the last century. As my col- the Secretary of the Army in cases of Sec- leagues know, Sitting Bull was a fa- REGULATORY REFORM tion 404 violations. However, even after a compliance plan has been approved, pen- mous leader and medicine man of the Mr. PRESSLER. Mr. President, dur- alties continue to accumulate. In effect, ex- Lakota people. This native American ing consideration of S. 343, the Regu- isting law actually punishes local govern- hero was born in the Mobridge area and latory Reform Act, I intend to offer an ments while they are trying to comply with lived there for much of his life. His re- amendment to waive administrative the law. mains are buried on a nearby bluff and civil penalties for local govern- Under my amendment, local governments overlooking the Missouri River. ments when Federal water pollution would stop accumulating civil and adminis- The Sitting Bull Stampede began as control compliance plans are in effect. trative penalties once a Municipal Compli- ance Plan has been negotiated and the local- a small rodeo organized by a group of I believe this amendment is a simple ity is acting in good faith to carry out the cowboys. As the rodeo became more issue of fairness to local governments plan. Further, my amendment would act as successful, the stampede began to take and I urge my colleagues to join me in an incentive to encourage governments to on a cultural focus. Last week’s cele- supporting this amendment. I ask move quickly to achieve compliance with bration was one of the biggest thus far, unanimous consent that my amend- the Clean Water Act. complete with parades, rodeos, a car- ment be printed in the RECORD, along This amendment is a simple issue of fair- nival, and many other festivities. More ness. Local governments must operate with a with my ‘‘Dear Colleague’’ letter. than 400 contestants competed in this There being no objection, the mate- limited pool of resources. Localities should not have to devote their tax revenue to pen- year’s rodeo. Miss Rodeo America, Jen- rial was ordered to be printed in the alties, while having to comply with the law. nifer Douglas, was on hand to assist in RECORD, as follows: Rather, by discontinuing burdensome pen- the crowning of this year’s stampede AMENDMENT NO. — alties, local governments can better con- queen, Anne Lopez of Keldron. At the appropriate place, insert the follow- centrate their resources to meet the intent Mr. President, I am very proud of the ing: of the law in protecting our water resources accomplishments of the people of the SEC. . WAIVER OF PENALTIES WHEN FEDERAL from pollution. Mobridge area in planning such a tre- I hope you will join me in supporting this WATER POLLUTION CONTROL ACT mendous event. The Sitting Bull Stam- COMPLIANCE PLANS ARE IN EF- commonsense amendment for our towns and FECT. cities. If you have any questions or wish to pede brings two cultures of our State Section 309 of the Federal Water Pollution cosponsor this amendment, please feel free together. It reminds us not to forget Control Act (33 U.S.C. 1319) is amended by to have a member of your staff contact our past as we progress into the future. adding at the end the following: Quinn Mast of my staff at 4–5842. I extend my best wishes to the citizens ‘‘(h) WAIVER OF PENALTIES WHEN COMPLI- Sincerely, of Mobridge and all who participated in ANCE PLANS ARE IN EFFECT.— LARRY PRESSLER, this year’s events. ‘‘(1) IN GENERAL.—Except as provided in United States Senator. f paragraph (2), notwithstanding any other f provision of this Act, no civil or administra- tive penalty may be imposed under this Act WAS CONGRESS IRRESPONSIBLE? CONCLUSION OF MORNING against a unit of local government for a vio- LOOK AT THE ARITHMETIC BUSINESS lation of a provision of this Act (including a Mr. HELMS. Mr. President, before The PRESIDING OFFICER. Morning violation of a condition of a permit issued business is closed. under this Act)— contemplating today’s bad news about ‘‘(A) if the unit of local government has en- the Federal debt, let us have ‘‘another f tered into an agreement with the Adminis- go,’’ as the British put it, with our lit- COMPREHENSIVE REGULATORY trator, the Secretary of the Army (in the tle pop quiz. Remember—one question, REFORM ACT case of a violation of section 404), or the one answer. State to carry out a compliance plan with The question: How many million dol- The PRESIDING OFFICER. Under respect to a prior violation of the provision the previous order, the Senate will now by the unit of local government; and lars in a trillion dollars? (While you ‘‘(B) during the period— are arriving at an answer, bear in mind resume consideration of S. 343, which ‘‘(i) beginning on the date on which the that it was the U.S. Congress that ran the clerk will report. unit of local government and the Adminis- up the Federal debt that now exceeds The assistant legislative clerk read trator, the Secretary of the Army (in the $4.9 trillion.) as follows: case of a violation of section 404), or the To be exact, as of the close of busi- A bill (S. 343) to reform the regulatory State enter into the agreement; and ness yesterday, Monday, July 10, the process and for other purposes. ‘‘(ii) ending on the date on which the unit exact Federal debt—down to the of local government is required to be in com- The Senate resumed consideration of pliance with the provision under the plan. penny—stood at $4,924,014,991,181.29. the bill. ‘‘(2) REQUIREMENT OF GOOD FAITH.—Para- This means that, on a per capita basis, Pending: graph (1) shall not apply during any period in every man, woman, and child in Amer- Dole amendment No. 1487, in the nature of which the Administrator, the Secretary of ica now owes $18,691.65. a substitute. S 9654 CONGRESSIONAL RECORD — SENATE July 11, 1995 Mr. HATCH addressed the Chair. Federal regulatory system and to im- which has been determined to be sub- The PRESIDING OFFICER. The Sen- prove the rulemaking process of public ject to the Regulatory Flexibility Act ator from Utah. notice and comment. The Judiciary be considered a major rule for the pur- Mr. HATCH. Mr. President, I suggest Committee report at that time found poses of cost benefit analysis and peri- the absence of a quorum. that the ‘‘dramatic costs of regulation odic review. Agencies frequently pro- The PRESIDING OFFICER. The suggest that we may be expending our pose rules whose annual economic im- clerk will call the roll. limited resources on uncertain regu- pact would not rise to the $50 million The assistant legislative clerk pro- latory remedies for various costs at a threshold set by this bill, but those ceeded to call the roll. significant human cost by depriving rules can and do place significant bur- Mr. HEFLIN. Mr. President, I ask other vital interests of these re- dens on small businesses. The Nunn unanimous consent that the order for sources.’’ amendment will assure that cost bene- the quorum call be rescinded. The 1982 report found that annual fit analysis benefit small businesses. The PRESIDING OFFICER. Without compliance costs of Federal regulation, I might add that the substitute ex- objection, it is so ordered. that is, costs which are borne by those empts from the definition of ‘‘rule’’ Mr. HATCH. Mr. President, will the who must comply with regulations, those rules which related to future Senator yield? were running ‘‘at more than $100 bil- rates, wages, prices, monetary policy, Mr. HEFLIN. Yes. lion a year.’’ The 1995 report from the Mr. HATCH. I ask unanimous consent protection of deposit insurance funds, Judiciary Committee concludes that that no amendment be filed until Sen- farm credit insurance funds, or rate these costs are now approximately $542 proceedings of the Federal Energy Reg- ator DOLE has an opportunity to get billion. Congress must act to address here from the wings. ulatory Commission. The PRESIDING OFFICER. Without this problem. Once an agency has determined that objection, it is so ordered. RULEMAKING a rule is a major rule, the agency must Mr. HEFLIN. Mr. President, I am I note that the first part of the sub- conduct a cost-benefit analysis to dem- pleased to support and cosponsor S. 343, stitute incorporates many procedural onstrate that, based on the rulemaking the Comprehensive Regulatory Reform improvements to section 553 of the Ad- record as a whole, the benefits justify Act of 1995. The time has come for ministrative Procedure Act which de- the costs and that the rule imposes the meaningful regulatory reform and for fines the rulemaking process. This sec- least cost of any of the reasonable al- the Congress to exercise its legitimate tion substantially incorporates and up- ternatives that the agency has the dis- legislative function to set statutory dates the provisions of S. 1080. cretion to adopt. Quite simply put, this standards to guide Federal agencies This section requires public notice of means that if a Chevrolet will get you with regard to their rulemaking au- proposed rulemaking in the Federal to your goal, pick it and not the Cad- thority. Register and expands the amount of in- illac model. Since my term as chief justice of the formation which must be given by an AGENCY REVIEW AND PETITION Alabama Supreme Court when I and agency to the public so that it can ade- The next section of this substitute others set out to reform Alabama’s an- quately comment on the proposal. An requires each agency to publish a list tiquated judicial system, I learned that exemption is established from this re- of existing rules, general statements of true reform never comes easy. En- quirement where such a proposed rule policy, or guidances that have the force trenched bureaucracy and vested inter- would be ‘‘contrary to an important and effect of rules, that the agency est groups will fight you every inch of public interest or has an insignificant deems to be appropriate for review, and the way, as I know they are now doing. impact.’’ each agency must publish a schedule President Clinton acknowledged the There are other provisions which are for systematic agency review of those need for regulatory reform in a speech too numerous to mention, but this sec- rules. The agency schedule shall pro- on March 16 of this year when he called tion is strongly supported by many pose deadlines for review of each rule for common sense in approaching regu- legal scholars and the American Bar and the deadlines will occur not later latory reform. He said, and I agree, Association. than 11 years from the initial schedule that ‘‘government can be as innovative ANALYSIS OF AGENCY RULES established by the agency. This time- as the best of our private sector busi- The second section of the substitute frame, to me, is a reasonable one and nesses. It can discard volume after vol- deals with the analysis of agency rules should allay concerns that agencies ume of rules and, instead, set clear defining expansively the terms ‘‘costs’’ will be swamped with too much work goals and challenge people to come up and ‘‘benefits’’ to include, not just as a result of this legislation. wit their own ways to meet them.’’ quantitative considerations, but also This bill also provides a petition The substitute bill that has emerged qualitative considerations of what a process to allow any interested person is the product of several hearings be- cost-benefit analysis should contain. subject to a major rule to petition an fore the Judiciary Committee, the En- This section also contains a definition agency to conduct a cost-benefit analy- ergy Committee, and the Govern- of a ‘‘major rule’’ which is set at $50 sis on an existing rule if it is a major mental Affairs Committee. Extensive million, a figure that is arguably too rule and that its benefits do not justify discussions have occurred over the last low especially since every President its costs, nor does the rule impose the several weeks in an attempt to fashion since Gerald Ford has defined, by Exec- least costs of the reasonable alter- a consensus bill which can pass the utive order, a major rule to be $100 mil- natives. A petitioner has a high stand- Senate and will be signed by the Presi- lion, as does S. 291, the regulatory bill ard to meet and will have to spend a dent. I believe our efforts will prove that reported out of the Governmental great deal of money to conduct its own successful because the bill under con- Affairs Committee. cost-benefit analysis to show there is a sideration is not extreme reform. An earlier draft of this legislation likelihood that the rule’s benefits do It does not contain a supermandate, provided that a major rule could also not justify its costs. as the House bill does, which would be less that $50 million if it were likely I also supported an amendment of- overturn Federal laws to protect our to result in disproportionate costs to a fered by Senator ABRAHAM which will environment, protect worker safety, or class of persons or businesses within be included in this section to ensure guarantee product safety. the regulated sector. This provision that agencies periodically review the The last time the Senate attempted would have given relief to many small need for rules which have a substantial to legislate in this area was 15 years businesses who are all too often threat- impact on small businesses. As section ago when working in a bipartisan man- ened with being put out of business due 623 is now written rules will not be sub- ner we passed 94–0 a bill known as S. to the costs of implementing a rule. I ject to review unless an agency chooses 1080. Regretfully, certain interest support an amendment offered by Sen- to place them on the review schedule groups prevailed upon the House of ator NUNN which will assure that our or unless an interested party success- Representatives to kill our reform ef- Nation’s small businesses will derive fully petitions to have the rule placed forts. the benefits intended by our reform ef- on the schedule. Thus rules which have I was a cosponsor of S. 1080 which was forts in this bill. The Nunn amendment a substantial impact on small busi- drafted to address deficiencies in the would require that a proposed rule nesses might be left off of the review July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9655 schedule. The Abraham amendment sis or risk assessment shall constitute Mr. DOLE. Mr. President, what is the would require agencies to include on part of the whole rulemaking record pending business? their review schedules any rule des- and not be subject to separate, inde- The PRESIDING OFFICER. The ignated for review by the Chief Counsel pendent consideration. The provisions Chair advises the pending business is S. for Advocacy of the Small Business Ad- in the substitute provide for effective 343. ministration. This amendment creates, judicial review of cost-benefit analyses AMENDMENT NO. 1492 TO AMENDMENT NO. 1487 in effect, a small business counterpart and risk assessments ‘‘to determine (Purpose: To address food safety concerns) to the petition process available to whether the analysis or assessment Mr. DOLE. Mr. President, I send an larger industries and makes section 623 conformed to the requirements’’ of the amendment to the desk to the sub- stronger and fairer for all the regulated bill. stitute and ask for its immediate con- community. The judicial review provision does sideration. I, therefore, support the provisions of not allow judicial nitpicking to over- The PRESIDING OFFICER. The section 623 relating to agency review turn a final rule if an agency fails to clerk will report. and the petitioning process. I believe follow a procedure required by this law. The legislative clerk read as follows: that a reasonable effort and com- However, if the substance of a cost-ben- promise has been achieved which will The Senator from Kansas [Mr. DOLE] pro- efit analysis or risk assessment is poses an amendment numbered 1492 to not overly burden our regulatory agen- flawed, a court can and should review amendment No. 1487. cies and at the same time will ensure such a flawed conclusion as a part of On page 25, delete lines 7–15, and insert the that current rules are revised, if nec- the final agency rulemaking. following in lieu thereof: essary, and terminated if they become MISCELLANEOUS ‘‘(f) HEALTH, SAFETY, OR FOOD SAFETY OR outdated or useless. There are other provisions which I EMERGENCY EXEMPTION FROM COST-BENEFIT DECISIONAL CRITERIA will not attempt to address at length ANALYSIS.—(1) A major rule may be adopted and may become effective without prior Let me turn briefly to the decisional at this time. There is an extensive pro- criteria section of this legislation. In compliance with this subchapter if— vision relating to risk assessment, a ‘‘(A) the agency for good cause finds that my judgment, it does not go as far as section known as regulatory flexibility conducting cost-benefit analysis is imprac- the House bill on the issue of analysis which passed the Senate last ticable due to an emergency, or health or supermandate. The House bill’s provi- year, which I supported, to give relief safety threat or a food safety threat (includ- sions require that a rule’s benefits to small businesses and a provision ing an imminent threat from E. coli bac- teria) that is likely to result in significant must justify costs and that the rule supported by Senator GRASSLEY known achieves greater net benefits or the harm to the public or natural resources; as congressional review which will give and’’. rule must be rescinded outright. The Congress the right to veto agency rules House bill thus supersedes, before they take effect. Perhaps this Mr. DOLE. Mr. President, I ask for supermandates, and trumps all other should be limited to veto major rules the yeas and nays on the amendment. previous statutory criteria. The provi- or we may risk being inundated with The PRESIDING OFFICER. Is there a sions of this substitute ‘‘supplement paperwork. With congressional staffs sufficient second? any other decisional criteria otherwise shrinking, it may be wise to limit this There is a sufficient second. provided by law.’’ Despite what the provision, or this provision may prove The yeas and nays were ordered. critics may say, the Senate bill is not meaningless. AMENDMENT NO. 1493 TO AMENDMENT NO. 1492 a supermandate, nor is it a wholesale The substitute bill before the Senate (Purpose: To address food safety concerns) massacre of our Nation’s environ- is a major step in the right direction Mr. DOLE. Mr. President, I send a mental, health, or safety laws and reg- toward meaningful regulatory reform. second-degree amendment to the pend- ulations. Congressional action to give agencies ing amendment to the desk and ask for Under this legislation, Federal agen- some greater guidance is warranted its immediate consideration. cies are directed to conduct cost-bene- and long overdue. I applaud the admin- The PRESIDING OFFICER. The fit analyses on all major rules they istration for its recent actions to im- clerk will report. propose to issue. As a general rule, no prove the situation, but it is not The legislative clerk read as follows: final major rule shall be promulgated enough for my constituents who must The Senator from Kansas [Mr. DOLE] pro- unless the agency head finds: First, live with the reality of regulatory poses an amendment numbered 1493 to that the benefits justify the costs; sec- overkill on some occasions. I am quite amendment No. 1492. ond, that the rule employs flexible al- certain that the entrenched Federal Mr. DOLE. Mr. President, I ask unan- ternatives, and third, that the rule bureaucracy will never approve of true imous consent that reading of the adopts the ‘‘least cost alternative of reform. They want unlimited authority amendment be dispensed with. the reasonable alternatives that to make rules as they see fit. The PRESIDING OFFICER. Without achieve the objectives of the statute.’’ However, I believe the Congress has a objection, it is so ordered. If the underlying statute does not responsibility to set some reasonable The amendment is as follows: allow the agency to consider whether a standards for the bureaucrats to fol- In lieu of the language proposed to be in- rule’s benefits justify its cost, the low. This historic regulatory reform serted, insert the following: agency can still issue the rule—unlike bill is the most comprehensive effort ‘‘(f) HEALTH, SAFETY, OR FOOD SAFETY OR the House bill where the rule is pre- since the Administrative Procedure EMERGENCY EXEMPTION FROM COST-BENEFIT cluded from going forward—as long as Act was adopted in 1946. ANALYSIS.—(1) Effective on the day after the the rule employs flexible alternatives, I began my public career reforming date of enactment, a major rule may be and adopts the ‘‘least cost alternative one system, and as I approach the end adopted and may become effective without prior compliance with this subchapter if— that achieves the objectives of the of my career, I am pleased to join the statute.’’ ‘‘(A) the agency for good cause finds that reform that is now needed for the Fed- conducting cost-benefit analysis is imprac- What is unreasonable about Congress eral executive branch of the Govern- ticable due to an emergency, or health or requiring agencies to follow these ment. safety threat, or a food safety threat (includ- standards when a rule’s benefits do not Mr. HATCH. Mr. President, I suggest ing an imminent threat from E. coli bac- justify its costs? This is what regu- the absence of a quorum. teria) that is likely to result in significant latory reform is all about—trying to The PRESIDING OFFICER (Mr. harm to the public or natural resources; and’’. give the unelected Federal bureaucrats COVERDELL). The clerk will call the some guidance in their rulemaking au- roll. Mr. DOLE. Mr. President, the only thority. The legislative clerk proceeded to change is that it becomes effective 1 JUDICIAL REVIEW call the roll. day after the date of enactment in the Next, the judicial review provisions Mr. DOLE. Mr. President, I ask unan- second-degree amendment. of the substitute adequately address imous consent that the order for the As I stated yesterday, opponents of concerns that I have raised, and judi- quorum call be rescinded. regulatory reform have avoided the cial review is granted to review final The PRESIDING OFFICER. Without merits and, instead, have engaged in agency actions. Any cost-benefit analy- objection, it is so ordered. scare tactics. S 9656 CONGRESSIONAL RECORD — SENATE July 11, 1995 One of the most recent, perhaps most protect their little preserves are the The Senator from Kansas [Mr. DOLE] pro- offensive, of the scare tactics has been ones who are peddling the false infor- poses an amendment numbered 1494. the suggestion that regulatory reform mation and trying to scare people. Ob- Mr. DOLE. Mr. President, I ask unan- means tainted meat, specifically, fur- viously, you can scare people if you imous consent that reading of the ther outbreaks of E. coli food poison- distort the facts. amendment be dispensed with. ing. This is an insult to the American Now that I have offered the amend- The PRESIDING OFFICER. Without people. ment, opponents will no doubt come up objection, it is so ordered. It is also false. Opponents know that with more imaginary scenarios. But I The amendment is as follows: this claim is false, and the media am putting them on notice that we Strike the word ‘‘analysis’’ in the bill and knows it. Yesterday, I included in my chose the broadest possible phrase. In insert the following: statement and accompanying fact the event that somebody missed it, it ‘‘analysis. sheet in the RECORD two specific provi- is, ‘‘emergency and health safety ‘‘( ) HEALTH, SAFETY, OR FOOD SAFETY OR sions already in the bill to make it ob- threats.’’ We chose it in the first place EMERGENCY EXEMPTION FROM COST-BENEFIT vious that this bill would not hold up for a very good reason. We want to ANALYSIS.—(1) A major rule may be adopted meat inspection rules. make certain that every possible re- and may become effective without prior compliance with this subchapter if— One provision allows the implemen- sponse to health and safety threats is ‘‘(A) the agency for good cause finds that tation of a regulation without first exempted from delay where that is ap- conducting cost-benefit analysis is imprac- complying with other requirements of propriate. Adding a laundry list, as op- ticable due to an emergency, or health or the bill where there is ‘‘an emergency ponents would have us do, undermines safety threat, or a food safety threat (includ- or health or safety threat.’’ the very public policy goal opponents ing an imminent threat from E. coli bac- That seems pretty clear to me. That pretend they seek. This is so because it teria) that is likely to result in significant is in the bill. It does not get any clear- raises the possibility that someone harm to the public or natural resources.’’ er than that. It is a sign of either slop- could read this provision to exclude Mr. DOLE. Mr. President, I ask for py journalism or extreme cynicism, anything not specifically included. I do the yeas and nays on the amendment. and this amendment ought to be named not think that is what ought to hap- The PRESIDING OFFICER. Is there a the Ralph Nader-Margaret Carlson-Bob pen. sufficient second? Herbert amendment. I have listened to That is not our intent. We want the There is a sufficient second. these commentators—who probably broadest possible language so that we The yeas and nays were ordered. never read the bill—and they talk can take care of all of the situations AMENDMENT NO. 1495 TO AMENDMENT NO. 1494 about the terrible things that can hap- where health or safety threats exist. Mr. DOLE. Mr. President, I send an pen and that we are all going to eat Mr. President, I certainly urge the amendment to the desk and ask for its tainted meat. Margaret Carlson said adoption of this amendment. It seems immediate consideration. 5,000 people are going to die, and then to me, as I have said earlier, based on The PRESIDING OFFICER. The she corrected it to 500 before the pro- the misinformation, flatout distor- clerk will report. gram ended. It seems that the media do tions, and flatout false statements that The legislative clerk read as follows: not worry about the facts if they have I have read in the media, heard in com- The Senator from Kansas [Mr. DOLE] pro- a good story. I hope to send a message mentary, heard on television, I offer poses an amendment numbered 1495 to to the media—at least those three—and this amendment. It should not be nec- amendment No. 1494. those on the left who need to read the essary to offer this amendment, but, as Mr. DOLE. Mr. President, I ask unan- bill, to read what really happens. The I have suggested, it is being offered to imous consent that reading of the media have chosen to buy into these make certain that nobody misunder- amendment be dispensed with. distortions in the face of language that stands—nobody on this floor, on either The PRESIDING OFFICER. Without makes clear that we have responsibly side of the aisle. There is nobody that objection, it is so ordered. taken health and safety concerns into I know of who does not support food The amendment is as follows: account. safety. In lieu of the language proposed to be in- I do not believe for a moment that Mr. President, I want to make an in- serted, insert the following: opponents are unaware of this health quiry of the managers momentarily. In ‘‘analysis. and safety exemption. But in an effort an effort to get a vote on this amend- ‘‘( ) HEALTH, SAFETY, OR FOOD SAFETY OR to ensure that we begin focusing on is- ment and make certain this is the first EMERGENCY EXEMPTION FROM COST-BENEFIT sues legitimately in this debate, I am amendment we will have a vote on, ANALYSIS.—(1) Effective on the day after the offering an amendment to make crys- procedurally, I also would need to date of enactment, a major rule may be tal clear that S. 343, the regulatory re- amend the bill itself. I am amending adopted and may become effective without prior compliance with this subchapter if— form bill before us, has no effect on ef- the substitute. But if I can have some ‘‘(A) the agency for good cause finds that forts to address food safety. Period. assurance that we can have a vote conducting cost-benefit analysis is imprac- End. That is it. without any further amendments to ticable due to an emergency, or health or No one here, Democrat or Repub- the bill on this issue, then I will not safety threat, or a food safety threat (includ- lican, wants to interfere with food safe- proceed to sort of fill up the tree. I ing an imminent threat from E. coli bac- ty. I hope we can lay that to rest by make that inquiry of the Senator from teria) that is likely to result in significant having a big vote on this amendment. Ohio. harm to the public or natural resources.’’ The words ‘‘health and safety,’’ already Mr. GLENN. Mr. President, I am glad Mr. DOLE. Mr. President, I think part of the bill, obviously include con- the majority leader has addressed the this is a clear-cut issue. My view is cerns about food safety. But this E. coli situation. I would like to check that the amendment is not necessary. amendment adds the words ‘‘food safe- with some of the people who were in- But this is an effort to have the oppo- ty, included an imminent threat from terested in this on our side before we nents who are really concerned about E. coli bacteria.’’ proceed with this. It might even be pos- this bill focus on the issues rather than Mr. President, it concerns me that sible to accept it, I do not know. I trying to frighten the American people, such distortions are being made. E. coli would like to check on it further before saying that somehow anybody who is bacteria and the illnesses that occur as I agree to anything at this point. for this bill is out here trying to peddle a result of that bacteria are serious Mr. DOLE. It may be just a matter dirty meat. That was a charge made problems for the people of this country. of—well, I will go ahead and fill up the over the weekend and in the past few Every Member of Congress, regardless tree and amend the bill in two degrees. days. of party, is concerned. It is not a par- AMENDMENT NO. 1494 I think probably it is in the interest tisan issue and should not be a partisan Mr. DOLE. Mr. President, I send an of everybody who supports regulatory issue. But opponents—I do not mean amendment to the desk ask for its im- reform that the amendments be of- the opponents in the legislative body. I mediate consideration. fered. I am the one being criticized by think the opponents have come from The PRESIDING OFFICER. The the media. ‘‘Senator DOLE’s bill is pro- outside the bureaucracy and in the clerk will report. moting dirty meat.’’ And some say media. All these people who want to The legislative clerk read as follows: maybe I am doing it for the July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9657 meatpackers. Well, I do not know any including the Presiding Officer, who time to time, and certainly the outside meatpackers. I do not have any connec- have been working on this on a daily groups—I have to say, evidently, the tion there. In any event, this is just to basis. media, or some aspects of the media. I calm down the hysteria of some in the My view is if we were to work in a bi- actually have watched the media over media. But they will get hysterical partisan way we can complete action the last number of years, and I think about something else. They are good on on the bill this week. I am happy to they have been for the most part re- their feet. As soon as this matter is re- yield the floor to the Senator from sponsible, but on this issue they have solved, they will have some other Louisiana. not been responsible since this bill has hysterical notion or a figment of some- Mr. JOHNSTON. Mr. President, I been laid down, or at least those who body’s imagination, and some state- want to thank the majority leader for have been primary purveyors of what ment will be made, or there will be a his comments. they think this bill stands for. ludicrous charge that they will pick up Mr. President, this amendment, in We have over 100 amendments we on. There are, unfortunately, some peo- my view, is totally unnecessary, but if have agreed to with the White House ple in the bureaucracy who believe that it helps to clarify and reassure, then I and others on this bill, trying to ac- the Government should do everything will support it. The provision that it commodate and resolve these prob- in America. They do not want any reg- amends was one of those provisions put lems. ulatory reform. in at our behest, and agreed to by the I might add, we have worked very They are not one of the American majority leader, in order to take care closely with the distinguished Senator families who are paying an average of of this very situation. from Louisiana and others in doing so. $6,000 a year for regulatory reform. Whether it is cryptosporidium, E. I want to compliment the majority They are not a farmer or rancher or coli bacteria, or Ebola virus—what- leader for his willingness to try and small businessman or small business- ever—the bill already covers that kind make this bill as perfect as we possibly woman who is trying to make a living of health emergency. The bill says that can. for their family and all they get are you do not have to comply with either One of the amendments we agreed to more and more and more regulations cost benefit or with risk assessment if was described by our distinguished from the Federal Government. they find that there is an emergency or Senator from Louisiana, that he fought I happen to believe that regardless of health or safety threat that is likely to for in our negotiations, that really anybody’s party affiliation, if you are a result in significant harm to the public solved this problem. I think it is unfor- businessman, a businesswoman, a farm- or to natural resources. tunate we have to resolve it again and er, rancher, whatever, you have to be- Mr. President, it is clear the bill al- again and again because of hysteria lieve there are too many regulations ready covers that, and this was one of and the use of fear tactics on the part and you have to believe there is some those 100-odd amendments that were of the left, really, in this country. way to protect health and safety as we accepted by the majority leader at our I have to say, certain Members of the should, also, to make certain that behest. media, in my opinion, have acted irre- there is some way we can review and I believe it has been a very good bi- sponsibly. I hope that the media will make certain that some of these regu- partisan effort. It is not a complete and read this bill, those who are respon- lations never are implemented, because perfect bill yet. We still have some sible will read it, and start talking they have no benefit, a great deal of amendments which we hope will be ac- about this bill in the manner that it cost, and all they do is put a burden on cepted. There is an ongoing dialog deserves. somebody in America. about that. It is amazing to me the lengths sup- Democrat, Republican, somebody out Mr. President, I am still very hopeful porters of big government status quo there will pay. That is why we find this this bill can be passed overwhelmingly will go to in opposing the Dole-John- coalition of the left and the media and on both sides of the aisle. I hope we can ston regulatory reform bill. The newest those in the bureaucracy and others proceed not with drawing lines in the media myth spread at the end of last who are fearful they might lose a job, dirt and lines in the sand and tossing week is that the bill’s cost-benefits re- I guess, or they might make life easier bombs at one another, but, rather, try quirement will somehow block the U.S. for the average Americans, who are vi- to make this bill a more perfect bill, a Department of Agriculture’s meat safe- tally opposed to any regulatory reform. better bill. ty rules for 2 or 3 years. That is pure I mentioned to the President this Believe me, Mr. President, risk as- bunk. It is apparent opponents of the morning, we had a meeting at the sessment and cost-benefit analysis is bill are preying on the fear of the pub- White House, and I apologize to the needed by the taxpayers who are over- lic and on individuals who have suf- managers for being late, this was a bill burdened in this country today, and fered from E. coli bacteria. that I thought had potential to have just to try to defeat this bill by phony What these advocates of fear do not broad bipartisan support. I met pri- issues is not the way to go. We should reveal, enforcement of food safety rules vately with the President after a regu- try to improve it with real amend- is predominantly done not through lar meeting. I told him the number of ments. rules but through adjudicatory enforce- changes we have already made, and we I believe that the distinguished Sen- ment and inspection orders against are prepared to look at other changes ator from Utah, the floor manager of meat processors and handlers, which that are legitimate, and we are still this bill, and I believe the majority are explicitly exempt from S. 343’s re- having ongoing—as I understand—the leader, will show cooperation, because quirements. Senator from Utah has an ongoing dis- they have so far. What they did not reveal is that S. cussion with Members on the other I will vote for this amendment. It is 343, in any event, contains a provision side. totally unnecessary. The bill already that exempts health, safety, or emer- I will not repeat what the President covers this kind of emergency. gency rules from cost-benefit analysis said. I do not want to repeat discus- Mr. HATCH. Mr. President, I know when there is a threat to the public. sions of the President, but I want him the distinguished Senator from Ohio They also do not reveal S. 343 man- to understand, talking about biparti- wants to comment. I will just take a dates the promulgation of rules that sanship, and lowering the rhetoric, this few minutes. are both cost efficient and that are is an opportunity, right here, this bill. I want to thank the distinguished likely to significantly reduce health, There is no reason this bill does not Senator from Louisiana for his cogent safety, and environmental risks. pass this body by a vote of 75 to 20 or remarks. He is right. This matter was They did not reveal that the USDA 80 to 20—good, strong, regulatory re- taken care of in our negotiations. We had already conducted a cost-benefit form bill. I would hope that we can have language in this bill that com- analysis and concluded that the bene- continue in the spirit we have started. pletely resolves this problem without fits of the rule far outweighed its cost. I want to commend the Senator from this amendment. Finally, I want to mention the most Louisiana, the Senator from Utah, Sen- In the interest of trying to pacify and outrageous statement attacking the ator HATCH, and the Senator from resolve some of the hysteria and fear bill in this media campaign of fear was Delaware, Senator ROTH, and others, that seems to pervade this body from made last Thursday on C-SPAN. To S 9658 CONGRESSIONAL RECORD — SENATE July 11, 1995 generate fear of S. 343’s cost-benefit re- The silliest of all as far as I am con- other side of the aisle voting to keep E. quirement, a spokesperson for the lob- cerned, for today’s list: coli in, in that regulatory moratorium. bying group Public Citizen, contended No. 1. A company was fined $34,000 by Mr. JOHNSTON. Will the Senator that cost-benefit analysis was some- the EPA for failing to fill out form ‘‘R’’ yield? thing the Nazis conducted to compute in spite of the fact that they do not re- Mr. GLENN. No, I will not yield at the worth of prisoners in concentration lease any toxic material. this point. camps. These are the type of things we are The PRESIDING OFFICER. The Sen- That is highly offensive. Such claims trying to correct. These are the type of ator has not yielded. are pure bunk. They are nonsense. It things this bill will correct. These are Mr. GLENN. I will not yield. demonstrates how really desperate the the type of things that have Americans We hear it is not needed. We hear desperate can be. all over this country upset, and rightly that such rules are exempted in this These people want overregulatory ac- so. bill—but it still leaves it up to the tivity because that is where the power This is why we have worked so hard, agency. What if we have somebody in has been. They control the whole U.S. the distinguished Senator from Louisi- the agency who does not want to do population from this little beltway ana and our majority leader and oth- this? I am not going to make too much called Washington, DC. When we come ers, to come up with a bill that really out of that because, we have to trust to this floor and bring reasonable rules makes sense, that will make a dif- the people in the agencies. But to say that will change the status quo and ference, that will help us all to get rid that we should have no concern, that cause people to be able to live within of some of these silly, ridiculous, cost- nobody on this floor, nobody in the certain norms and restraints and save ly and really harmful regulations and whole U.S. Senate is against health the taxpayers’ moneys and cause our interpretations of regulations as well, and safety rules when we had a vote in society to work better, then these de- and to give the people some power to committee that prevented rules ad- fenders of the status quo, these leftists, make the bureaucrats have to think dressing E. coli and cryptosporidium, start making these outrageous com- before they issue regulations and inter- which was another vote, from being ex- ments. pretations of those regulations as well. empted from that moratorium is just The Dole amendment makes crystal At that point, I yield the floor. not right. There is very, very good rea- clear that S. 343 does not impede the The PRESIDING OFFICER. The son why we are concerned about this. all-important protection of public Chair recognizes the Senator from We did not have a single Democratic health and food safety. Ohio. vote that was against exempting these In that regard, let me just take a Mr. GLENN. Mr. President, I am important rules, but we did have votes couple more minutes, because I think sorry the majority leader, who pro- on the Republican side that prevented this is a perfectly appropriate place for posed the amendment, has left the that exemption being made in commit- me to give my daily Top 10 List of Silly floor. I hope he may be listening, be- tee. That is the reason we are con- Regulations. Let me start with No. 10, cause there is more reason to be con- cerned about this. This is not some- a regulation holding up the residential cerned about this than he indicates. thing we are making up. It is not some- building project for a wetland, .0006 We hear repeatedly, ‘‘This is not thing fictitious. It showed the intent acres in size—about the size of a Ping needed, it is not needed, it is not need- on the other side, at least in that case, Pong table. ed.’’ Everybody says that. Yet we are under the regulatory moratorium, of No. 9. Creating an Endangered Spe- still leaving it up to the agencies to not being willing to give one inch on cies Act recovery plan for a breed of make the decisions. Maybe that is OK. this issue. Not even when we have snail that will only flourish in an ice But let me tell you why we were plan- about 250 deaths a year, and over 20,000 age or during the ice ages. ning to address E. coli this morning people made ill by E. coli bacteria No. 8. A regulation making the play- anyway before the majority leader every year. ing of a musical instrument near a came back and put in the amendment. Further, under this bill, there are campfire in a national forest a Federal There is a track record here, going still problems even if the agency de- class B misdemeanor. I mean, my good- back into committee, of Republicans clares an emergency. An emergency ex- ness. not voting to take E. coli out of consid- emption is provided, and I agree and I No. 7. Fining a company for not hav- eration here. We had a regulatory mor- know the Senator from Louisiana is ing a comprehensive hazardous commu- atorium bill proposed a few months going to say that the agency has the nications program for its employees. back that came before the Govern- discretion to exempt these rules, and Its employees were two part-time mental Affairs Committee. It would they can. But the bill now says that workers. That is our Federal Govern- have stopped everything in its tracks. within 180 days of putting the rule out, ment in action. No. 6. Requiring $6 hospital masks in- It was a regulatory moratorium for ev- the agency has to go back and do the stead of $1.50 masks, without any evi- erything from the last election on—any cost-benefit analysis and risk assess- dence that the more expensive mask is rule, any regulation that was in consid- ment. Even with that kind of an ex- needed. eration. Even some of those that had emption by the agency, I do not know No. 5. Requiring such stringent water been finalized already and were in ef- whether they can do a cost-benefit testing, that local governments actu- fect were cut off. analysis or whole risk assessment in ally had to consider handing out bot- We had a list of rules in committee 180 days. That is very difficult. Some- tled water in order to save money. that we thought should be exempted, times these things take years—2, 3, or That is our Federal Government in that should not be subject to that regu- 4 years or more. If they cannot com- action, at work. latory moratorium. There was no ex- plete the work required what happens No. 4. Denying a permit to build a emption for health and safety in com- then? And even then, these rules would pond to raise crawfish because the mittee on that. And what happened? I still be subject to the petition process. habitat provides food and shelter to ‘‘a put in an amendment in committee The agencies might have to review the wide variety of * * * fish * * * includ- that would exempt rules to protect rule again, which is subject in turn to ing the red swamp crawfish.’’ against E. coli. We had parents who judicial review, or judicial challenge, No. 3. Barring a couple from building lost children come before the commit- anywhere along the line. So there are their dream house because the tee and testify as to the horrible death still weaknesses and there are areas goldencheeked warbler had been found that their children suffered with E. where we are still concerned about in the canyons adjacent to their land. coli. Their children died. And I put in this. Just think about that. This is happen- an amendment in committee to exempt But I come back to why we are con- ing in America. E. coli from that moratorium. We had cerned about this. We are not digging No. 2. Requiring so much paperwork a record rollcall vote and I lost, be- up things. We are not desperate. We are for a company over 50 employees—8 cause the Republicans opposed it. I lost not wild-eyed leftists over here. We are pounds, by the way, 8 pounds of paper- on that, 7 to 7, one Republican being trying to protect the people of this work—that they purposely do not hire absent. I lost that vote to exempt E. country from E. coli in this particular any more people. coli, with seven Republicans on the case. I think the majority leader has July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9659 addressed some of the problem with nents are not willing to take yes for an And if there is a real problem with this. Maybe it is sufficient. I do not answer. I do not know what happened cryptosporidium or E. coli, why do not know. We will have to talk it over a in committee. I do not know whether you offer the amendment? Let us see if little bit to see what we want to do on the Republicans were opposed or were we can work it out rather than come in this. not opposed to some particular provi- on the floor with white-hot debate and But there is very, very good reason sion on E. coli bacteria. But I am tell- mothers with children who die from why I personally had concern about ing you. various things. We are just as con- this. It is heartwrenching to sit in the Mr. ROTH. Will the distinguished cerned about that, those of us who committee and hear mothers and fa- Senator yield a moment on that point? want regulatory reform, as anybody in thers come before the committee talk- Mr. JOHNSTON. Yes, for a question. this Chamber. And we have taken care ing about how they lost their children Mr. ROTH. I wanted to make a state- of it. To suggest that it is not taken to E. coli. ment on what happened in the commit- care of is just not ingenuous, Mr. Presi- We see statistics. We know that there tee. dent. are estimates that about 4 percent of Mr. JOHNSTON. If the Senator will We need regulatory reform. We need the meat is tainted. So you had better let me make a few comments, I will bipartisan regulatory reform. If there cook it well. I will tell you that. Four yield the floor. are serious amendments, let us con- percent—that means that 1 out of Mr. ROTH. All right. sider them on their merits and not on every 25 times you buy a hamburger, it Mr. JOHNSTON. The point is not the basis of something that is not in could be tainted. We want to protect what has happened in past history. We this bill. the people of this country against that are dealing with what this bill says Several Senators addressed the kind of meat contamination, if we can. now here. I and my staff worked with Chair. Of course, we do. We brought this up in the majority leader on this very provi- The PRESIDING OFFICER. The committee. We could not get that ex- sion to take care of not only E. coli, Chair recognizes the Senator from emption through in the committee. It not only cryptosporidium, not only Delaware. was not exempted from the morato- Ebola virus, but all public safety Mr. ROTH. Mr. President, what the rium. That is the reason we are con- threats so that we exempted from any distinguished Senator from Louisiana cerned about this. cost-benefit analysis or any risk as- has just said is exactly on point. What So this is not something fictitious. sessment if it is impractical due to an we are seeking to do is to make this a This is something that we have already emergency or health or safety threat cleaner environment for all people. voted on in committee. The Repub- that is likely to result in significant What has happened too often by scare licans voted solidly on the other side to harm to the public or natural re- tactics is that we find actions being not exempt E. coli from that regu- sources. taken that are unnecessary and unwar- latory moratorium that was proposed Mr. President, what could be more ranted. The Senator is absolutely at that time. The regulatory morato- clear than that? If it is a threat to pub- right. There is language already in the rium still has not been completed, be- lic health or safety or likely to result proposed legislation that will take care cause we have not gone to conference in any significant harm to the public of these emergencies where there is a with the House yet. or natural resources, you do not have threat to health and safety. And there I still have some concern about the to do a cost-benefit analysis. You do is no way. It is totally impossible to processes under this bill, S. 343, that not have to do a risk assessment. That eliminate where all of those threats are would require that within 180 days a was not in the original Dole bill. They going to arise in the future. That is the cost-benefit and risk assessment would accepted this amendment. Now they do reason for the general language that, have to be done for rules that have not want to take yes for an answer. where there is an emergency or a prob- been issued under this exemption. I do Mr. President, we need to get this lem of health and safety, an exemption, not know whether that can be done. bill to be really considered for what it an exception, is made to the require- But if it is not done, what would hap- says. I just received a statement of ad- ments of the legislation. But the basic pen then? It would still be subject to ministration policy on this Comprehen- purpose of the legislation is to ensure petitions to review the rule all over sive Regulatory Reform Act which I that we do a better job of regulating, of again, even though everybody can say must tell you, Mr. President, I find of- eliminating the risks and problems E. coli is a danger to the health and fensive. I think it is disingenuous. I sat faced by this Nation. It is already cost- safety of the people of this country. in the room with Sally Katzen who is ing every American family something Yet, in committee Republicans voted head of the OIRA. She came up with like $6,000 a year. We need to ensure against exempting that; voted to not some very good suggestions among that those dollars are well spent, that give the protection that the people of which was a method—I call it the we get the biggest bang for the buck. this country deserve. Katzen fix—whereby we could combine Just let me point out that what ex- So I am glad that the majority leader all of the scheduling of rules to be con- ists in this legislation also existed in has done what he has done this morn- sidered, of look backs of the petition the moratorium. The moratorium pro- ing. We will have to discuss whether we process to have it all considered at the vided that the President had the right think this goes far enough. But there is same time with that schedule con- to exempt health and safety regula- very good reason why we are concerned trolled by the Administrator. We ac- tions from the moratorium. That about this. Our concerns are not ficti- cepted this suggestion completely— would include various diseases, E. coli tious, not something we are making Senator DOLE and his staff, and Sen- or whatever else might be of emer- up, and it is not something where poli- ator HATCH and others. And now I find gency nature. The important point was tics is involved. It is the health and that this is unacceptable and agencies that when the Republicans voted the safety of the people of this country. It are overwhelmed with petitions and way they did they were relying on the is not because of politics, as the major- the lapsing of effective regulations. It general language. I do not care how ity leader indicated a little while ago, is just disingenuous because they ac- many amendments we add. I support that we are talking about E. coli. And cepted the very proposals which were the amendment of the distinguished an exemption is needed. The vote in made. majority leader. But legally, it is not committee showed that we needed leg- Let us get serious about this bill, Mr. necessary. islation in this regard. So we will see President. Look. This bill is not about Would not the Senator from Louisi- whether we think it is adequate or not. E. coli bacteria or about ana agree with that? I yield the floor. cryptosporidium. Those are scare tac- Mr. JOHNSTON. Mr. President, I will Mr. JOHNSTON addressed the Chair. tics. That has been taken care of in say in response that really the major- The PRESIDING OFFICER. The this bill. There may be a lot of things ity leader’s amendment adds nothing Chair recognizes the Senator from Lou- to oppose on real grounds. But I think to what is already in the bill except it isiana. we ought to get real about it. We ought says including E. coli. Health including Mr. JOHNSTON. Mr. President, the to be ingenuous about our opposition, E. coli. A health threat already in- problem with this bill is that the oppo- those who propose various provisions. cluded E. coli. It already includes S 9660 CONGRESSIONAL RECORD — SENATE July 11, 1995 cryptosporidium. It also includes the first place, which is to protect them, to the operative language is you do not Ebola virus. It already includes every- create security for them from harms have to comply with the chapter if thing that is encompassed in the world from which they cannot protect them- there is a health or safety threat. health. selves. The inspection of meat, to pro- Now, would the Senator not agree So it is totally unnecessary. But if it tect people—and people have died from with me that the phrase ‘‘health or reassures somebody that now we are bacteria in meat—is part of that appa- safety threat’’ would encompass any of taking care of E. coli, so much the bet- ratus. these problems such as E. coli, ter. So it is after Congress recognizes a cryptosporidium, Ebola, flu, the com- Mr. ROTH. I could not agree more. I problem, creates a law, and the Presi- mon cold? It covers everything relating personally intend to support the dent signs it, that then, because the to a health or safety threat. Would not amendment of the distinguished major- law cannot cover every contingency, the Senator, my friend, agree with ity leader. But the important point is the administrators come along and that? that in this legislation we want to deal they adopt regulations to carry out the Mr. LIEBERMAN. Mr. President, to with not only the threats we face today rule, to apply it to specific cases. And respond through the Chair to the Sen- but we face in the future. That is the this, frankly, is where we have gotten ator from Louisiana, first, I thank him reason for the general legislation. Who into some of the problems that have for his kind words and, second, it seems knows what horrible disease may de- generated the bill before us and the to me on the face of it the intention is velop sometime in the future. That is substitute that many of us on the Gov- certainly to cover those health and the purpose of the language in this leg- ernmental Affairs Committee sup- safety threats. The question is whether islation. ported, S. 291, now adopted almost it is effectively done or comprehen- So I just want to say I agree with completely in the Glenn-Chafee bill. sively done, and I would like to work what the distinguished Senator from You would have a hard time, Mr. with the Senator. Louisiana said. It was exactly the same President—at least I have not found in Let me just say that the other day situation when we were dealing with this Chamber of 100 Senators represent- we received the paper flying all over regarding the moratorium. We had gen- ing every State in this Union—one about the Food and Drug Administra- eral language to cover health and safe- Member who will say that he or she is tion comments of the overall bill, and ty. We gave the President the author- not for regulatory reform. We all have they say as part of their comments: ity to exempt it. There was no need for been home and talked to our constitu- The exemption for likely health or safety it. That is the reason many of the Sen- ents, small business people, large busi- threats will not permit the agency to take ators voted as they did. ness people, individuals who can cite expeditious action to avert harm. First, the Several Senators addressed the for us an example where there is just finding of good cause would be imposed in Chair. too much regulation, but even more addition to the statutory violation finding The PRESIDING OFFICER. The that the agency currently is required to regulation without common sense. make before taking any action, unless the Chair recognizes the Senator from Con- My friend and colleague from Utah, necticut. intent is to override the statutory finding. Senator HATCH, has been providing This requirement is burdensome and inap- Mr. LIEBERMAN. I thank the Chair. what I might call the daytime version propriate. Second— Mr. President, I appreciate the fact of David Letterman’s nighttime list of And this is something that I have that the majority leader has offered the 10 best. We have Senator HATCH in this amendment this morning, not just been concerned about— the morning, and we have heard these neither ‘‘significant harm’’ nor ‘‘likely’’ is because it clarifies that the language stories and they are real, and it is why of the bill was not intended to hold up defined. As a result, it is unclear how many we are all for regulatory reform. But situations would fall under this standard. Is this rule on bacteria in meat, which the reason why some of us are con- the threat of one spontaneous abortion— the Centers for Disease Control tells us cerned about the content of the bill be- is a serious health problem, but be- The example they use— fore us and why we seriously want to or one death a significant harm? Under what cause the amendment reminds us why go through this process and see hope- we have regulation. The amendment circumstances would the threat be deemed fully if we cannot work together in the likely? Would the adulterated product need reminds us that regulation does not end to get to a position where all of us, to be in domestic commerce before the simply emanate out of a vacuum in or at least most of us, can support the threat was likely? which some bureaucrat falls to impose bill is our fear that inadvertently in re- The requirement that the harm render the irrational rules. Regulation comes sponding to some of the excesses and completion of a detailed risk-benefit analy- from laws that we adopt in Congress, foolishness of regulation and bureauc- sis impractical adds a further level of com- that are signed by the President, that plexity to what should be a straightforward, racy, we may impede the accomplish- expedited determination. recognize some public problem that we ment, the purpose of the underlying I am not embracing all of these ques- as the elected representatives of the public health and safety laws that I be- tions as my own, but I think they are people have concluded the people them- lieve the public wants. reasonable, and I would like to work selves cannot protect themselves from; Mr. JOHNSTON. Will the Senator with the Senator to make sure that we they cannot handle that problem on yield at that point. do put to rest any of the concerns that their own. Mr. LIEBERMAN. I would be happy are raised in here about public health There are a lot of problems like that to yield to my friend from Louisiana. and safety, although I must say that I in our increasingly complicated, so- Mr. JOHNSTON. The Senator, my have an underlying concern about some phisticated, globalized world. It is not friend from Connecticut, is one of the of the other sections as they affect the like the old days where you basically best lawyers in this body, and I con- regulatory process even in cases where grew what you ate. We are eating a lot sider him to be one of the best lawyers they are not health and safety. of stuff that comes from halfway in the country. It is for that reason But let me finally, bottom line, re- around the world. We are breathing air that I ask him, on page 25 of the bill, it spond. I understand that the intention that contains pollutants that come contains language that says: from thousands of miles away. We are here is to cover all of the concerns, the A major rule may be adopted and may be- specific cases, of the bacteria and the affected, when we go out on a sunny come effective without prior compliance day in the summer, by rays that are with this subchapter if the agency, for good rest, and I would like to review the lan- coming through the hole in the ozone cause, finds that conducting a cost-benefit guage in the majority leader’s amend- layer that has been created by chemi- analysis is impractical due to an emergency ment and work with the Senator from cals that are being sent up there from or health or safety threat that is likely to Louisiana to make sure that we do just all around the globe, and so on and so result in significant harm to the public or that. forth. natural resources. It seems to me, as I said a few mo- So we have created a series of protec- We have the same language over on ments ago, I think we all share two tions as part of what I would consider page 49 that has to do with the risk as- common goals. The Senator from Ohio the police power of the State, which is sessment. So it covers both cost-bene- has outlined these as his test for why people form governments in the fit analysis and risk assessment, and whether he will support a regulatory July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9661 reform bill. And to paraphrase and in Connecticut, I do not find anybody dividuals and the environmental com- state them simply, we are all for regu- saying to me there is too much envi- munity. I am fearful that if cooler latory reform. We agree there are ex- ronmental protection. I do not find heads do not prevail in this particular cesses. There is foolishness. But in anybody saying to me there is too debate, and debates are going on about achieving regulatory reform let us much consumer protection, there is too other laws, that that partnership is make sure that inadvertently we do much food safety protection, too much going to be broken. It will have a bad not block the accomplishment of the protection of toys. Yes, I find some effect overall. It is going to lead, first, purpose of the legislation that is un- business people saying to me that some to the kind of conflict that does not derneath the regulations. of the ways in which these goals you produce results, does not clean up the Mr. JOHNSTON. Mr. President, if the put into legislation are being enforced environment, but, second, I am afraid Senator will further yield, I appreciate by some of the inspectors, the bureau- from the point of view of business, one his candor. Let me say that this crats are ridiculous. The average busi- of whose understandable goals is to amendment was put in at my behest to ness person I talk to says, ‘‘Look, I’m seek consistency of regulation, of law, deal with the problem. It was our best not just a business person, I’m a citi- there is going to be inconsistency, we judgment as to how to deal with what zen, I’m a father, I’m a husband, I’m a are going to swing from extreme to ex- really was, we thought, a problem with grandfather. I have as much interest in treme, and that is not good. the original language. This was printed clean air and clean water and safe Finally, if we do not get together and up, as you know, and then we went into drinking water and safe food and safe be reasonable with one another and negotiations on our side of the aisle. I toys as anybody else.’’ adopt a good regulatory reform bill, it personally spent something like 24 I am saying as we go forward, let us is going to face a Presidential veto. hours in direct face-to-face negotia- remember both sides. Then nothing is going to be accom- tions with our caucus and our Members I have two more general points. No. 1 plished. We would have spent a lot of and our staff. I did not, up until today, is, I am a member of the Environment time, filled the air with a lot of rhet- hear any criticism of this language. and Public Works Committee. I have oric, but ultimately, we are going to be If there is a way better to make it spent a lot of time on that committee. left with a regulatory system that all absolutely clear that you can deal with Let me say briefly that I find there is of us find inadequate. these imminent threats without any an extraordinary broad base of support So I hope as we go forward that we delay, without having to do anything in my State, and I believe throughout will keep those thoughts in mind. I be- like cost-benefit or risk assessment, if this country, for environmental protec- lieve that the bill before us still, be- that is not absolutely clear—and I be- tion. In fact, environmental protection cause of the petition process in it, lieve it is as clear as the noonday Sun is, as the writer Gregg Easterbrook which is an invitation to delay, be- on a cloudless day, I think it just pointed out in articles and a book re- cause of some of the standards that are shines through—but if it is not, then I, cently, probably the single greatest set, inadvertently puts at risk some of for one, will certainly help clear it up. success story of American Government the accomplishments of the last two or I will solicit the help of my good friend in the postwar period. It is an interest- three decades. I personally prefer S. 291. I prefer it and good legal advisor from Connecti- ing thing to talk about. Again, it is not in part because I worked on it in the cut in helping to sharpen that lan- to say everything has been done to pro- Governmental Affairs Committee guage. tect the environment rationally and under the leadership of the Senator Mr. LIEBERMAN. I thank my col- sensibly. Twenty-five years ago, the from Delaware and the Senator from league from Louisiana. Obviously, I Connecticut River was described by Ohio. It came out of our committee 15 have respect for him, his judgment, his somebody as the prettiest sewer in to 0, a bipartisan vote. It is tough regu- word, and his good faith. I accept the America. Today, the river is fishable latory reform. It requires a determina- challenge to work with him to clarify and swimmable. That has happened all tion of whether the benefits justify the the intention of the bill overall with around America with rivers, lakes, and costs. It requires regular review by the regard to emergency health and safety streams. agencies of the regulations. It goes on problems. The same is true of the air, that was to create sunshine in the process and I know that the Senator from Ohio heading rapidly in the direction of not to put some common sense into the has a statement he wishes to make. I just smog that is hard to see through, regulatory process without jeopardiz- am going to spend a few minutes more but really affecting people’s health. I ing the underlying laws. and then I will yield the floor. am hesitant, after the discussion we So I prefer it to the alternative we I do want to say in overall terms, to had today about numbers here, but have before us, but I hope we can put in a different context these two there are fairly credible scientists and bridge the ground and, most of all, get goals that we have, that there is no doctors who say still in our country something done to change the status question that part of what motivates tens of thousands of people die pre- quo without jeopardizing the purposes the bill before us is the broadly held maturely—which is to say what it says, that have engendered the status quo. feeling in America that Government they would have lived somewhat longer I thank the Chair. I thank my col- has become too big and too intrusive. were it not for forms of air pollution. leagues for their patience, and I yield But reflecting only what I hear from This is particularly true of vulnerable the floor. my constituents in Connecticut, which populations. Several Senators addressed the is that, I also hear from them that There is an epidemic of asthma in Chair. there are certain things that they very our country. It has gone up 40 percent The PRESIDING OFFICER (Mr. much want Government to continue to in the last 10 years, particularly among KYL). The Senator from Ohio. do for them because they know they children. I have a child who has asth- PRIVILEGE OF THE FLOOR cannot do it alone and it cannot be ma. More and more of these kids are Mr. GLENN. Mr. President, I ask privatized. vulnerable to pollutants in the air. We unanimous consent that Jeneva Craig, I remember somebody once said—it is have done a pretty good job of cutting of my staff, be granted the privilege of not my thought—the law exists in soci- the number of those pollutants, but the floor during consideration of this ety in relationship to the natural good- still we have a greater amount of work legislation. ness and perfection of the species; in to be done. I am saying, as we try to The PRESIDING OFFICER. Without other words, in Heaven, if you will, make the regulatory process more ra- objection, it is so ordered. there is no law because everyone does tional, more reasonable, let us not pull Mr. GLENN. Mr. President, we got the right thing; in Hell, it is all law be- away from the underlying goals. off to a rather fast start yesterday and cause no one does the right thing; and Finally, one of the things that has we did not get to give our opening we on Earth are somewhere in between. happened in the environmental area is statements on the general view of the The law expresses our aspirations, our a general acceptance of the environ- legislation before us. I would like to do values, our desire for a just society. mental ethic, as I said a moment ago, that at this time. Do we overdo it sometimes? Sure, we and, I think, a growing partnership be- This is a most important matter that do. I have to tell you, when I am home tween the business community and in- comes before us with this legislation. S 9662 CONGRESSIONAL RECORD — SENATE July 11, 1995 It may well prove to be, as far as im- legislation strike an appropriate bal- But we also want agencies to be effec- pact on the American public, the most ance? That is the question. tive. The American public does not important legislation we pass this Those are the two tests this legisla- want the Federal Government to be year. I am under no illusions it will get tion must meet. I believe that if it can more inefficient or to have more public the most attention, but it may be the meet those two tests, there will be protections delayed or bogged down in most important. broad support for this effort. Any bill redtape and delay and courtroom argu- Before I launch into my statement, I that relieves regulatory burdens but ment. That is why Senator CHAFEE, ask unanimous consent to have three threatens the protections for the myself, and several others offered an editorials from the Washington Post, American people in health, safety and alternative bill just before the recess. the New York Times, and the Cleveland the environment should be opposed. It is S. 1001, and it is based on that Plain Dealer, which discuss the issue of Regulatory reform is very com- same Governmental Affairs Committee regulatory reform, printed in the plicated. The idea sounds great, but the bill, S. 291, that was reported out with RECORD following my statement. devil is in the details. Cost-benefit full bipartisan support. The vote was 15 The PRESIDING OFFICER. Without analysis, risk assessment, judicial re- to 0. There were eight Republicans and objection, it is so ordered. view, the specific elements of regu- seven Democratic votes out of commit- (See exhibit 1.) latory reform, are complex—very com- tee. Mr. GLENN. Mr. President, regu- plex. The parts do not make easy sound S. 1001 provides for tough, but fair, latory reform is one of the most impor- bites. But without making sense of the reform. It will require agencies to do tant issues before us. Make no mistake, words, there can be no real reform, let cost-benefit analysis and risk assess- I want regulatory reform. I think we alone a workable Government. ments, but it will not tie up all their need regulatory reform. Large busi- I am very concerned that in order to resources unnecessarily. It does not nesses want regulatory relief, so do keep up with the schedule established provide for special interest fixes. It small businesses, so do individuals. by the other body, the Senate is being does not create a lawyer’s dream. It And their general discontent with reg- rushed to consider a complex and provides for reasonable, fair, and tough ulatory burdens is, in many ways, jus- lengthy proposal whose consequences reform. It reflects the work of the Gov- tified. I believe that. That is why I are not yet fully understood. Regu- ernmental Affairs Committee on S. 291 want regulatory reform to be the right latory reform should be arrived at and only changes this bill in three balance. through a process of deliberation and ways. Why do we have to have a lot of regu- bipartisan consultation. That is the First, the definition of a major rule lations? Are bureaucrats just deciding process we used in the Governmental is one that has an economic impact of to write as many regulations as they Affairs Committee. From our land- $100 million. There are no narrative can think of over in the agencies? No, mark regulatory reform study clear definitions, such as ‘‘significant impact that is not the answer. The process is back in 1977, through legislation and on wages.’’ that Congress passes laws and agencies more than a decade of oversight of Second, the automatic sunset of rules carry out the intent of these laws OMB and OIRA paperwork and regu- that are not reviewed has been through regulations, through the de- latory review, and now to the consider- changed. If agencies do not review tails that are necessary to make the ation of legislative proposals in this rules within the allotted timeframe, laws applicable. Congress, the Governmental Affairs they must commence a notice of pro- Unfortunately, Congress passes a lot Committee has approached this issue posed rulemaking to repeal the rule. In of ill-thought-out laws in insufficient in an open and bipartisan manner. other words, the rule could not just sit detail in the first instance, and then we That was our mode of operation during there and automatically become unen- complain bitterly when the regulation my years as chairman. And this year, forceable. With this approach, there is writers in the agencies overstep into under the leadership of the new chair- opportunity for public comment, and unintended areas. In other words, if we man, Senator ROTH, our committee rules will not sunset without adequate want to look at some of the culprits in held four hearings and developed a opportunity for review. overregulation, let us look at our- unanimous bipartisan regulatory re- Third, we limited the risk assessment selves, let us look in the mirror. form bill, and S. 291 was the number as requirements to particular programs I repeat that sentence. Congress it came out of committee. Our commit- and agencies. We also made some tech- passes a lot of ill-thought-out laws in tee report also reflects this bipartisan nical changes in line with the National insufficient detail in the first instance, spirit and deliberative process. Academy of Sciences’ approach to risk and then we complain bitterly when Now, I make these points because the assessment. Those are the three the regulation writers in the agencies proposal, S. 343, that has been brought changes to S. 291 that we incorporated overstep into unintended areas. to the floor has been developed in a when it became S. 1001. I believe Congress needs to write laws similar open and deliberative manner. Let us remember what is at stake more clearly and give agencies more The bill is based on the Judiciary Com- here. Regulation is important because guidance. That way, agencies will not mittee’s reported bill that reflected a rules are needed to implement most have to guess what our intent was divisive committee, a proceeding that laws. There is no way around it. Public when they write the regulations that was cut short. health and safety, environmental pro- implement the laws. Until recently, negotiations on this tection, equal opportunity in education In other words, Congress should do bill went on behind closed doors. Dur- and in employment, stability in agri- the work and weigh our actions more ing the past several weeks, there have culture and other sectors of our econ- carefully, including the costs and bene- been many attempts to work together omy, each area has shown that it needs fits of a law. We should be doing all of to improve this bill. A number of Mem- the help of legislation and regulation that right here before passing legisla- bers have worked diligently to explain that follows to make it workable. tion that will be implemented through our differences and what we think I would like to talk for a few minutes regulation. needs to be changed. Before these dis- about a different, but related, regu- As we debate how to reform the regu- cussions were completed, S. 343—this latory matter. I mentioned it earlier latory process, we need to ask our- bill—was brought to the floor. It is a this morning. That was regulatory selves two essential questions. First, bill that we believe continues to have a moratorium. We debated that at the does the bill before us provide for rea- great number of problems. The result, end of March. I want to talk about sonable, logical, and appropriate from what I can see, is a bill tailored to here, because I believed many of the changes to regulatory procedures that special interests. It is a lawyer’s provisions of S. 343 could have a simi- eliminate unnecessary burdens on busi- dream. It does not meet the dual goals lar effect in undermining health and nesses and on individuals? of protecting health and safety and, at safety protections for the American Second, at the same time, does the the same time, having a more effective people, their families and their chil- bill maintain our ability to protect the and more efficient Government. dren. environment, health, and safety of all Yes, we want agencies to have more If there was ever a proposal to make of our people? In other words, does the thoughtful and less burdensome rules. one stop and think about what is at July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9663 stake, the moratorium would do it. It using the best scientific and economic I do not believe S. 343 follows these would have stopped all regulations analyses to do so. principles; instead it does special fa- dead in their tracks, starting back at What is the economic impact of regu- vors for a special few—and in so doing last year’s election through the end of lation? How do we measure that im- creates a process that will delay impor- this year, no matter what State the pact? How do we weigh economic costs tant decisions, waste taxpayer dollars, regulations were in, no matter whether and benefits? What are the societal enrich lawyers and lobbyists, under- they were good or bad regulations. costs and benefits? Agencies need to do mine protections for health, safety, Now, proponents of the moratorium, better in each of these areas, and I be- and the environment, and further erode like proponents of S. 343, are ready to lieve true regulatory reform can im- public confidence in Government. subject the people of this country to prove agency analysis and make the I mentioned the seven principles. Let the slashing of regulations without due Federal rulemaking process work bet- me talk about each of the seven prin- examination of what could happen, ter. But accomplishing these reforms is ciples I raised in a little more detail. without considering what health and easier said than done. Principle 1. Agencies should perform There is wide disagreement in both safety protections may be at stake. risk assessments and cost-benefit anal- the economic and scientific commu- We had hearings in committee, and I ysis for all major rules. Most of us nities about the methodologies and un- met with Nancy Donley of Illinois and would agree that before an agency puts derlying assumptions used in perform- Rainer Meuller of California, who both out a major rule, it should do a cost- ing these analyses. In our committee, lost children to E. coli-tainted ham- we heard from witnesses on every side benefit analysis, and if it makes sense, burgers. Both came to Washington in- of these issues. In developing S. 1001, a risk assessment. tent on looking in the eyes of politi- we tried to craft a workable framework Let us start with one of the most fun- cians who were more willing to toler- for regulatory decisionmaking. The damental questions in this debate: ate endangering children than facing product of our committee work was a What should be considered a major up to a responsibility and making a unanimously supported, tough regu- rule? In the Glenn-Chafee bill and the regulatory process that works. Accord- latory reform bill. With only a few bill we reported out of the Govern- ing to USDA’s Food Safety and Inspec- changes—the ones mentioned—Senator mental Affairs Committee on a bi-par- tion Service, 3,000 to 7,000 Americans CHAFEE, myself, and others have pro- tisan, 15-to-0 vote, we decided that a die of tainted food each year, and 3 to posed this bill, S. 1001, as an alter- major rule should be one that has an 7 million Americans are sickened by native approach to regulatory reform. impact of $100 million. A $100 million food-borne illness. This is costing lives It would improve agency decisions, threshold has been the standard under and health and millions of dollars. lessen burdens on the American public, Presidential Executive orders for regu- Can anyone honestly say that we do improve the implementation of our latory review since President Reagan not need protections and an effective laws, and make Government more effi- in the early 1980’s. If anything, given regulatory process? Further, I heard cient and more effective. I intend to inflation, that threshold should go up, from airline pilots who were angry that offer S. 1001 as a substitute to S. 343 at not down, if you think about it. Congress might sacrifice air safety the appropriate time. The debate on S. 343 has a threshold of $50 million; standards in order to appear strong not the regulatory reform before us will, I the House bill casts an even wider net by being proponents of enhancing safe- believe, reveal many of the failings of of $25 million. These are just simply ty regulations, but by going too far the S. 343, and the more practical advan- too low. Remember—this bill will cover other way and delaying and even slash- tages of the Glenn-Chafee bill. all Federal agencies—not just the Envi- ing safety rules, all in the name of reg- Regulatory reform should focus on ronmental Protection Agency or the ulatory reform. In other words, we the following central issues, which are Food and Drug Administration. All would reform ourselves into greater reflected in S. 1001. I will expand on Federal agencies—Treasury, Com- danger for every airline passenger. these principles in more detail later in merce, Agriculture, and so on—would I heard from public health experts my statement: have to do extensive analysis for every who are alarmed at the threats to the First, agencies should be required to single rule that had a $50 million im- safety of drinking water from dangers perform risk assessments and cost-ben- pact. Or, if the House wins on this, a like cryptosporidium, which killed 100 efit analysis for all major rules. $25 million impact. people in Milwaukee in 1993, and made Second, cost-benefit analysis should What are we trying to accomplish 400,000 sick. So the moratorium would inform agency decision making, but it here? If it is to make the agencies use have halted drinking water safety rules should not override other statutory these important tools for important, until the end of the year. rulemaking criteria. economically significant rules, I be- Third, risk assessment requirements But the point of bringing up the mor- lieve we should keep the threshold should apply only to major risks as- atorium here is not to confuse the high. If we demand that rigorous cost- sessments, and these requirements issue, it is to point out that the bill we benefit analysis and risk assessment be take up today could well delay some of must not be overly prescriptive. Fourth, agencies should review exist- required for just about every rule, we these items well beyond the end of the ing rules, but their review should not will guarantee that we will use up val- year. It could delay them significantly be dictated by special interests. uable agency resources with very little beyond that. Fifth, Government accountability re- to gain. Of course, rules, regulations, and reg- quires sunshine in the regulatory re- One group that testified before the ulators are not always right. There can view process. Governmental Affairs Committee esti- be different approaches to protecting Sixth, judicial review should be mated that the House bill would add 2 the public from disease or injury. That available to ensure that final agency years to the rulemaking process and is why reform is important. Regula- rules are based on adequate analysis. It cost agencies a minimum of $700,000 per tions do not come free. Their costs are should not be a lawyer’s dream, with rule. I had some figures yesterday that weighing down the American people. unending ways for special interests to computed how expensive that could be Businesses, private citizens, univer- bog down agencies in litigation. and it gets up into the hundreds of mil- sities, and State and local governments Seventh, regulatory reform should lions of dollars. Let us remember that all complain that too many regulations not be the fix for every special interest. we are cutting the Federal work force go too far, that they just are not worth These principles would establish for and consolidating agency functions. it. the first time a Government-wide com- This bill should not create needless So our job is to find a balance that prehensive regulatory reform process. work that has little benefit. What is recognizes both the essential role of This process will produce better, less the cost-benefit analysis for using $50 regulations in our society and the so- burdensome, and probably fewer regu- million or $25 million? I believe it is cial and economic price paid by an lations. It will also provide the protec- going to cost the agencies a bundle of overreliance on regulation. Finding tions for the public interest that the money and resources and the benefits this balance means evaluating the ben- American people demand of their Gov- are few. Talk about poor cost-benefit efits as well as the burdens of rules and ernment. ratios. Let us stick to truly major S 9664 CONGRESSIONAL RECORD — SENATE July 11, 1995 rules and set that threshold at $100 First, in passing legislation, we, in ify this was offered during negotiations million. Congress, have said to agencies, ‘‘Go on this bill, but it was rejected. We I say let us first see how this works issue a regulation, based on what we’ve still do not have clarifying language on at the $100 million level. If we see that said in the statute’’—whether it be ‘‘an this point. If there was no it works well, I would be in favor of re- adequate margin of safety’’ or what- supermandate lurking here, why was ducing the threshold at a later date to ever. The agency should not have the the clarifying language rejected? So capture more rules, whether down to power to say, ‘‘Well, we can’t justify the more I hear that this is not a prob- $50 million or $25 million. But I want to the costs given the benefits of this lem, but that the language cannot be make sure that what we pass now rule, and therefore, we are not going to clarified, the more I have to wonder. works, is fair, and brings relief for the issue this rule.’’ This would basically Another problem that many of my biggest problems. I do not want to be handing our congressional respon- colleagues have discussed at length flood the system with so many rules sibility over to the agencies, based on a with the supporters of this bill is the that nothing works, and we find our- less-than-perfect tool of cost-benefit issue of least cost. Right now, this bill selves back here in 3 or 4 years reform- analysis. requires two major determinations be- ing the regulatory process once again. I heartily believe that agencies fore a rule can be issued: One, that the I feel this even more strongly after should tell us if they really do not benefits justify the costs; and, two, yesterday’s acceptance of an amend- think a rule’s benefits justify its costs. that the rule adopts the least-cost al- ment to include significant rules under But then the rule should come back to ternative. Let us think hard about the Regulatory Flexibility Act in the us in Congress to figure out what to do. these words ‘‘least cost.’’ Do we always definition of major rule. This will add This will also help to inform us in Con- want the agencies to do the cheapest well over 500 rules to those having to gress about a law that should be alternative? What if an alternative go through cost-benefit analysis under changed. For these reasons, I strongly that costs just $2 extra saves 200 more S. 343. This is just too much. support—and my colleague Senator lives? Do we say pick the cheapest, and Principle 2. Cost-benefit analysis LEVIN has been a strong leader on this do not look at benefits of the alter- should not override existing statutes. issue—a congressional review or the natives before you? Another question that we must decide right to veto rules through an expe- is how cost-benefit analysis should be dited review process. This makes a lot That is what this bill does. We should used. I believe, and many of my col- more sense than having a superman- give the agencies some leeway to use leagues believe, that in no way should date,’’ which would make cost-benefit common sense. They should be able to cost-benefit analysis override existing analysis override an existing statute. choose the most cost-effective ap- statutes. This is the so-called Remember that the congressional re- proach, looking not just at costs but supermandate issue. We all agree that view of rules passed the Senate 100 to 0. also at the benefits. Here, we would be it is a good idea to make agencies fig- It makes sense to do business this way. requiring them to pick the cheapest al- ure out what the costs and benefits of Let me give an example of how hard ternative, which may not always be the a rule are before issuing it, and to see it is to figure out costs. Everyone ac- most cost effective. whether the benefits justify the costs. knowledges that it can be very difficult In talking about this economic anal- But let us keep in mind that this tool to quantify benefits, but most assume ysis, let me say a quick word about is far from a hard and fast analytical that cost numbers are easier to esti- trying to reduce the costs of regulation science. There are lots of assumptions mate accurately. But let us consider on industry. In our efforts to reform that go into figuring out the costs of a the example from the Occupational the regulatory process, we should en- rule and the benefits of a rule, and Safety and Health Administration courage agencies to take a hard look at many benefits and costs are unquanti- [OSHA] of the cotton dust standard. market-based incentives to achieve fiable. That is certainly no argument Several hundred thousand textile in- regulatory goals. Many have shown for not doing it. I believe it can be a dustry workers developed brown lung— that we can achieve our environmental very useful tool in the decisionmaking a crippling and sometimes deadly res- goals, for example, at a lower cost than process, but it does show that caution piratory disease—from exposure to cot- we do now by using market-based is in order. ton dust before OSHA issued protective mechanisms. These alternatives allow Agencies often have to get cost data regulations in 1978. That year, there industries more flexibility in how they from the industry it is intending to were an estimated 40,000 cases, meet a standard. For example, rather regulate. And some industries have amounting to 20 percent of the indus- than telling every factory, new or old, been known to overstate how much it try work force. By 1985, the rate had that they must purchase the same will cost to comply with a regulation. dropped to 1 percent. equipment to fix a problem, we would The benefit side also has lots of dif- The initial estimates in 1974 for in- give them flexibility, reducing their ficulties. How much value do we place dustry to comply with a stricter stand- compliance costs while reducing the on a human life? Does it matter if that ard was nearly $2 billion. By 1978, same amount of pollution overall. human is an old man or a young girl? OSHA estimated the same costs to in- I agree with the part of S. 343, Sen- What is the value of preserving a plant dustry to be just under $1 billion. So ator DOLE’s bill, in which we are re- species? What is the value of avoiding the estimate fell by 50 percent by the quiring agencies to consider market- an injury to a worker? Clearly, agen- time the standard was issued. When the based mechanisms. We have a similar cies should not be forced to quantify actual costs of compliance were re- provision in the Glenn-Chafee bill, S. everything. On this point, Senator ported in 1982, they were four times 1001. DOLE, Senator JOHNSTON, Senator lower than the $1 billion estimate. It is Principle 3. Risk assessment require- CHAFEE, and I—and in fact, probably all likely that if OSHA had to use a cost- ments must not be overly proscriptive of us—agree. We should encourage benefit analysis to figure out whether and should apply only to major risk as- agencies to estimate costs and bene- to put out this standard in 1978, not sessments. Risk assessment require- fits—both quantifiable and having the knowledge that they did in ments are an important part of regu- nonquantifiable—and make totally 1982, they would not have done it, even latory reform because many of the clear what assumptions they use to do though it is clear to me that the great rules we want to address in this legisla- the analysis. This can help inform success of this rule certainly justifies tion relate to health, safety, or the en- their decisionmaking. its costs. But this is where we differ: Should Let us be clear on this point: Cost- vironment. the result of a cost-benefit analysis benefit analysis should not override ex- Risk assessment can help us better trump all other criteria for deciding isting statutory rulemaking criteria. understand what the risks are to the whether or not an agency should go Proponents of S. 343 say that this bill public or the environment, which in forward with a rule? The way S. 343 is does not have a supermandate. It has turn lets us figure out how best to written right now, that is what would been repeated over and over that this lower those risks. happen, and I do not think that makes bill does not have the supermandate. Scientists, agencies, and others have sense. Many of us disagree. Language to clar- testified that it is essential that we do July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9665 not make these requirements too pre- view, that ‘‘There is no reason why For this reason, agencies should take a scriptive. Risk assessment is an evolv- these boards should be granted the hard look at major rules that they be- ing science. The last thing Congress power to meet in secrecy. Indeed, there lieve deserve review. Of course, this should be doing under regulatory re- is every reason why they must meet in process should be open for public com- form is freezing this science by laying public.’’ ment so that those who are interested out in excruciating detail how an agen- Senator GRASSLEY, on the same sub- in particular rules can make their con- cy must do a risk assessment. ject, stated, ‘‘I ask my colleagues to cerns known to the agencies. But this I believe that both S. 1001, as well as adopt the amendment to make FACA review should not be dictated by spe- this bill, do try to strike a good bal- apply, because we ought to be doing ev- cial interests. ance. I must commend Senator JOHN- erything in the sunshine. If we do, the While I think a retrospective look at STON for his leadership in the area of mold will not grow there.’’ rules is essential, I do not believe in a risk assessment. He has done a lot of I agree completely with both of those process that would allow anyone sub- work on that. S. 1001 outlines smart statements. I do not see why the peer ject to a rule to petition an agency to risk assessment principles that are in review panels under S. 343 should be review a rule, which then requires line with recommendations of the Na- any different. stringent action by the agency to re- tional Academy of Sciences. Another issue about peer reviews: Do spond to that petition. That could just There are still a few problems in S. we really need to require peer review gridlock agencies and put special inter- 343, however, when it comes to the spe- panels for every risk assessment for ests and the courts, not the agencies, cific risk assessment requirements. For every environmental cleanup project? the executive branch, or the Congress, example, what is exempted from these S. 343 applies risk assessment and cost- in charge of the review. requirements and what is not? This bill benefit requirements to all Superfund The latest draft of S. 343 uses a peti- states that an agency does not have to and Department of Energy cleanups tion process to put rules on a schedule do a risk assessment for a rule ‘‘that that cost more than $10 million. for review. If the agency grants the pe- authorizes the introduction into com- Aside from the fact that I do not be- tition, it has to review the rule in 3 merce * * * of a product.’’ lieve we should deal with Superfund in years. That is a very short timeframe I ask my colleagues, what if an agen- a regulatory reform bill, I am very con- for such matters. If it fails to review cy determines that a product is unsafe cerned about the resources that agen- the rule in that time, the rule auto- and should be removed from com- cies would have to use to comply with matically sunsets, it becomes unen- merce? Under this bill, the agency this bill. There are hundreds of DOE forceable. This process, it seems to me, would have to do a full-blown risk as- sites and close to 1,000 Superfund sites puts the petitioner in the driver’s seat, sessment, complete with extensive peer that would be affected by these re- not the agencies or the Congress who review, before it could take a product quirements. I do not think it makes passed the law in the first place. off the market. If you want to put sense to require such extensive peer re- Mr. JOHNSTON. Mr. President, will something on the market, no sweat. If view requirements for each one of these the Senator yield on that point? you want to take something off the risk assessments. How will the agen- Mr. GLENN. No, I want to complete market, it is not so easy. And it will cies ever be able to find so many pan- my statement. Then I will yield the take time, a lot of time. els, for instance, that are truly bal- floor at that point. I do not think this makes sense. Pub- anced? How much will this cost the It also creates a process that is more lic health and safety can be harmed by Government? What would we gain from prone to killing regulations than creat- dangerous products on the market. All it? Where is the cost-benefit analysis of ing a thoughtful review of regulations. we have to do is remember back to the this approach? I think we should delete In addition to the peer review peti- thalidomide situation, for example, of the peer review requirement for envi- tions, S. 343 has many other petitions a few years ago, when talking about ronmental cleanups. for any interested party to challenge taking products off the market. We do Finally, the position of those sup- an agency on any rule, not just the not want to make it more difficult. porting the Glenn-Chafee bill is that major rule. These are yet more exam- Another problem is that the peer re- the procedural requirements of these ples of the lawyer’s-dream approach view requirements are exempted from assessments should be, of course, open taken under this bill. Under S. 343, the Federal Advisory Committee Act. to peer review, but they should not be someone could petition for issuance, Let me state first that peer review of reviewed by the court. The courts are amendment, or repeal of any rule; or, major risk assessments I think is abso- not the appropriate place to determine amendment or repeal of an interpretive lutely essential. Scientific experts whether particular assumptions or tox- rule or general statement of policy or should evaluate the information put icological data in a risk assessment are guidance; and, interpretation of the together by the agencies, and a good appropriate. The way the judicial re- meaning of a rule, interpretative rule, peer review process will ensure high- view section is written, this is indeed a general statement of policy, or guid- quality assessments. But how is the major concern. I will address that issue ance. peer review going to be run? The way just a bit later. And just to add to the confusion, S. S. 343 is written now, no peer review Principle 4. Agencies should review 343 also has a separate section, section would have to comply with FACA. existing rules, but that review should 629, for a petition for alternative com- FACA was set up to ensure sunshine, not be dictated by special interests. pliance. Any person subject to a major accountability, public input, public ac- Regulatory reform is not just about rule could petition an agency to modify cess—in fact, fairness to all parties in- improving new rules and developing or waive the specific requirements of a volved in such Advisory Committee new techniques for addressing new major rule and to allow the person to processes. problems. Regulatory reform must also demonstrate compliance through alter- FACA was put in to guarantee a bal- address the great body of existing rules native means not permitted by the ance of views on peer reviews, and yet that currently govern so many activi- rule. FACA would not apply to the require- ties in business, in State and local gov- In addition, S. 343 adds another peti- ments for peer review under this act. ernments, and which affect so many of tion process in section 634 so that in- The Federal Government currently us as individuals. terested persons may petition an agen- uses many peer review groups, most in For regulatory reform to be effective, cy to conduct a scientific review of a the fields of health, science, and tech- it must look back and review existing risk assessment. nology. These are all subject to FACA. regulations to eliminate outdated, du- Each agency decision on every one of The proponents of S. 343, who now plicative, or unnecessary rules, and to these petitions, except the petition for want to exempt these panels from reform and streamline others. This re- alternative compliance, is judicially FACA, were strong advocates of having view is required most simply because reviewable. It could be challenged in FACA apply to the health care review over time, many decisions become out- the courts. What a dream for the law- panels just last August, less than a dated. Review is also needed because of yers. All of these petitions and reviews year ago. For example, the majority the rising cumulative burden of exist- add up to one of the worst parts of this leader stated, quite properly in my ing rules on businesses and individuals. bill. I think it is a formula for true S 9666 CONGRESSIONAL RECORD — SENATE July 11, 1995 gridlock. Agencies will have to spend Principle 6. Judicial review should be The regulatory reform bill should ad- enormous resources responding to each allowed for the final rulemaking, not dress regulatory issues, not be a and every petition, and then they can for each step along the way. Regu- Christmas tree for lobbyists to hang be dragged to court if they turn down a latory reform should not become a law- solutions to whatever problems they petition. This does not come close to yer’s dream, with unending ways for may have. Let us look at some of these being real regulatory reform. This is special interests to bog down agencies provisions a little more carefully. regulatory and judicial gridlock. This in litigation. We firmly believe in a First, delays and higher costs for en- is a way to keep the agencies from court’s role in determining whether a vironmental cleanups. Every Superfund doing their jobs and to keep lawyers rule is arbitrary and capricious. S. 1001 and Department of Energy cleanup happy and extremely prosperous. This authorizes judicial review of the deter- that costs more than $10 million would bill would make all the rhetoric about minations of whether a rule is major have to go through a risk assessment tort reform a big joke except that in and therefore subject to the require- and cost-benefit analysis. This is not this case judicial gridlock means that ments of the legislation. Also, it allows just for activities that will be starting the health and safety of the American judicial review of the whole rule- up, not just for new projects. It covers people could be jeopardized. making record, which would include cleanups that are already under way. Principle 5. Government accountabil- any cost-benefit and any risk assess- EPA and DOE will have to stop any ity requires sunshine in the regulatory ment documents. We should not, how- progress they are making to go back review process. Agencies must work to ever, provide unnecessary new avenues and do additional costly analyses. This involve all interested parties in the for technical or procedural challenges is guaranteed to slow the pace of clean- regulatory process, from soliciting that can be used solely as impediments up even further, something we have all comments to disseminating drafts to by affected parties to stop a rule. been concerned about for a long time. ensuring broad participation in peer re- Courts should not, for example, be EPA estimates that 600 to 1,000 view. Accountability also requires pub- asked to review the sufficiency of an Superfund cleanups spread across every lic disclosure of regulatory review doc- agency’s preliminary cost-benefit anal- State in the Union would be caught in uments, including related communica- ysis or the use of particular units of this requirement. The Department of tions from persons outside the Govern- measurement for costs and benefits. Energy estimates that about 300 clean- ment. There can be no public con- While courts have a vital role, they ups would be affected. Does this make fidence in Government when some can should not become the arbiters of the any sense? I would prefer to spend the use back doors to decisionmakers. S. adequacy of highly technical cost-bene- taxpayers’ money on cleanup rather 1001 requires reasonable disclosure con- fit analyses or risk assessments inde- than repetitious, redundant studies and sistent with recommendations of the pendent of the rule itself. more lawsuits. Administrative Conference of the Unit- I believe, the way the bill is cur- To make matters even worse, these ed States. rently drafted, that lawyers and the cleanups have to go through the hoops of the decisional criteria, yet another Over the past 25 years, the most no- courts will get into the details of a risk supermandate in this bill. For each $10 table regulatory reform accomplish- assessment or cost-benefit analysis. I million cleanup, agencies would have ment has been development of central- think that is a mistake. From what I to prove that the benefits of the activ- ized Executive oversight of agency understand, there has been a great deal ity justify the costs, the activity em- rulemaking. This effort, while not of discussion about this issue, and I be- ploys flexible alternatives, and the ac- truly reforming the regulatory process, lieve many of us want the same result. The question is how to get there from tivity adopts the least cost alternative. has had a substantial impact on the Now, I and many others here recog- Federal regulatory process. It led to here. Leaving the language as ambigu- ous as it is now is not acceptable. nize the need for Superfund reform, and the development of agency regulatory we worked hard on that last Congress. analysis capabilities and better coordi- Principle 7. Regulatory reform should not be the fix for special inter- That is where this provision belongs, nation among agencies, though the under Superfund reform, not regu- record is quite uneven across agencies. ests in every program. Many parts of S. 343 are very different from the bill we latory reform. If we are going to fix the The development of centralized regu- reported out from the Governmental problem, let us fix it right. Adding new latory review has also led to more con- Affairs Committee on a bipartisan burdens and hurdles is certainly not sistent policy direction and priority basis and the alternative bill we intro- the right approach. setting from the Office of the Presi- duced before the recess. In the bill be- Second, gutting of the toxics release dent, though the record here is uneven fore us, S. 343, several provisions are inventory, the TRI. The TRI is in- as well, due largely to partisan con- aimed at benefiting special interests or tended to provide the public with infor- troversy about Presidential use of that stalling particular programs. Frankly, mation about chemicals being released power to affect agency decisions. Many they have no place in a regulatory re- into their local environment. This bill times over the past 15 years many of us form bill that should attempt to set a would fundamentally change the way have been in the Chamber debating the fair process, fair and equal to all. the TRI works and would swamp the use of OMB regulatory review. First, let me say that I sympathize agency. In reforming the regulatory Much of the controversy that has with those who would like to fix par- process, we are trying to encourage dogged centralized regulatory review ticular problems. I know of examples agencies to use flexible approaches to since it was formalized in 1981 by Presi- where regulations go too far and where regulation and make the agencies more dent Reagan in Executive Order No. agencies go too far. As testimony be- efficient. The TRI currently provides 12291 revolves around public confidence fore our committee showed, 80 percent information to the public and encour- in the integrity of the regulatory proc- of the rules are required by Congress. ages the voluntary reduction of toxic ess. The issue has come to be known as It is not just the regulatory process emissions through whatever means a the regulatory sunshine issue. And that needs fixing. We in Congress are company chooses to use. This program while the Governmental Affairs Com- also responsible for a lot of these prob- has not only provided maximum flexi- mittee has in the past been divided lems. Let us focus on making the regu- bility to companies, but it has also re- about how much sunshine is needed latory process better as a whole and sulted in significant reductions in and at what stages in the process, the not a fix for special interests. emissions. Since 1988, companies have committee has always agreed on the Let me give some examples. reported a decrease in emissions of list- need for sunshine and public confidence This bill tries to delay Superfund ed chemicals of more than 2 billion in the regulatory process. cleanups. It rewrites the Delaney pounds a year. In this bill, we would S. 343 has no sunshine provisions. It clause, shuts down the EPA toxic re- change the standard for removing is not like the Glenn-Chafee bill, S. lease inventory, provides enforcement chemicals from the list. We would force 1001. S. 343 has no sunshine provisions relief for companies, and so on. EPA to perform thousands of site-spe- for regulatory review, and I believe Now, I agree that some of these are cific risk assessments in a very short that is a fundamental flaw that needs legitimate problems that deserve our time. This sounds less like regulatory to be addressed. attention, but this is not the place. reform and more like make-work for July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9667 the agency. If Congress wants to able to foodborne pathogens and therefore at The Office of Management and Budget ad- change the standard in TRI, we should greatest risk. vises that there is no objection to the pres- do it in the context of Emergency On February 3, 1995, USDA proposed reform entation of this report to the Congress. of the federal meat and poultry inspection Planning and Community Right-to- Sincerely, system to incorporate science into its in- DAN GLICKMAN, Know Act legislation. This provision spection system. USDA’s proposal would re- Secretary. has no place being in this bill. quire the use of scientific testing and sys- Mr. GLENN. Mr. President, I quote Third, repeal of the Delaney clause. tematic measures to directly target and re- some from that RECORD, in closing, to You will get no argument from me that duce harmful bacteria. The goal is simple: to improve food safety and to reduce the risk of show how some of these things can it is time to change the Delaney work. They address E. coli, salmonella, clause. It should have been done a long foodborne illness from consumption of meat and poultry products. and some other things we addressed time ago. But this regulatory reform Under the proposal, the Nation’s 9,000 fed- earlier on the floor today. bill does not fix it. I believe this is just erally inspected slaughter and processing In this letter from the Secretary of one more case of a very important and plants would be required to adopt science- Agriculture, he points out some of the substantive area that should be dealt based HACCP procedures. Targets would be difficulties. He says: set for reducing the incidence of contamina- with outside the context of regulatory I am writing in regard to the effect that S. tion of raw meat and poultry with harmful reform. 343 would have on the efforts of the Depart- bacteria. Meat and poultry plants would be ment of Agriculture to improve the meat and In conclusion, I want regulatory re- required to test raw products for pathogens, poultry inspection system and the safety of form, but S. 343 does not provide bal- and to take corrective action, if necessary, the Nation’s supply of food. The Food Safety anced regulatory reform. Its overall to meet food safety targets. impact will be to swamp the agencies S. 343 would significantly delay this essen- and Inspection Service published a proposed rule to significantly reform the Federal in- to the point of ineffectiveness, provide tial reform by requiring USDA to establish a peer review panel which satisfies the criteria spection system by requiring the adoption of lots of jobs for lots of lawyers, and to science-based Hazard Analysis and Critical in S. 343, submit a cost-benefit analysis and make some companies very happy. Control Point procedures. S. 343 would need- risk assessment (analyses) to the panel, and lessly delay USDA’s efforts to reform the I would like to work hard with every- convene the panel to review the analyses. one here, all my colleagues, to make a meat and poultry inspection system. The panel would then be required to prepare Foodborne pathogens in meat and poultry good, fair and truly balanced regu- and submit a report to FSIS detailing the latory reform bill. products, such as E. coli, Salmonella and scientific and technical merit of data and Listeria, are believed to cost the Nation bil- So I hope we can address many of the methods used for the risk assessment, in- lions of dollars from lost productivity, medi- issues I have raised today. I urge every- cluding any minority views. FSIS would cal costs, and death. The virulent E. coli bac- one to take a hard look at the regu- have to respond in writing to all significant teria alone is estimated to cause 20,000 ill- latory reform approaches in the Dole- comments made in the report. The report nesses and 500 deaths annually. Young chil- and the FSIS response would become part of dren and the elderly are particularly vulner- Johnston and the Glenn-Chafee bills the rulemaking record and would be subject and then ask yourselves: Are we reliev- able to foodborne pathogens and therefore at to judicial review provisions of S. 343. These greatest risk. ing regulatory burden on industries procedures would significantly delay the es- On February 3, 1995, USDA proposed reform and individuals? Are we protecting the sential reform effort by a minimum of six of the Federal meat and poultry inspection environment and health and safety of months. system to incorporate science into its in- the American people? While peer review can be a useful tool to spection system. USDA’s proposal would re- We must work together in a true bi- improve the rulemaking analyses, the poten- quire the use of scientific testing and sys- tial benefits from a peer review of the tematic measures to directly target and re- partisan spirit to meet these two essen- HACCP reform proposal does not justify de- tial goals of regulatory reform. To- duce harmful bacteria. The goal is simple: laying reform of this system—a reform that To improve food safety and reduce the risk gether we can truly improve how our is supported by all interests. Similar review of foodborne illness from consumption of Government works. has been already been occurring. The sci- meat and poultry products. Mr. President, I asked consent earlier entific foundation of the HACCP proposal, in Under the proposal, the Nation’s 9,000 fed- for insertions into the RECORD. I will short, will have been the subject of extensive erally inspected slaughter and processing ask for one more. We have a letter that review and comment as part of the rule- plants would be required to adopt science- was addressed to both leaders, the ma- making process. based HACCP procedures. Targets would be First, FSIS published the preliminary reg- set for reducing the incidence of contamina- jority and minority side, from the De- ulatory impact analysis (PRIA) in the Fed- tion of raw meat and poultry with harmful partment of Agriculture. I think it is eral Register for comment with the proposed bacteria. Meat and poultry plants would be worth including in the RECORD also. I HACCP rule. The PRIA contained a prelimi- required to test raw products for pathogens, ask unanimous consent that that letter nary cost-benefit analysis and risk assess- and to take corrective action, if necessary, be printed in the RECORD. ment which explained the assumptions re- to meet food safety targets. There being no objection, the letter garding the risks and costs of foodborne ill- S. 343 would significantly delay this essen- was ordered to be printed in the ness to the public, the costs of the proposed tial reform by requiring USDA to establish a rule to the regulated community, and the peer review panel which satisfies the criteria RECORD, as follows: range of benefits in terms of reduced in S. 343, submit a cost-benefit analysis and DEPARTMENT OF AGRICULTURE, foodborne illness that the proposed HACCP risk assessment analyses to the panel, and OFFICE OF THE SECRETARY, rule would achieve. Before publishing any convene the panel to review the analyses. Washington, DC, July 11, 1995. final regulation, FSIS will revise and finalize The panel would then be required to prepare Hon. ROBERT DOLE, this cost-benefit analysis based on the com- and submit a report to FSIS detailing the Majority Leader, U.S. Senate, Washington, DC. ments received. Second, peer review of the scientific and technical merit of data and DEAR BOB: I am writing in regard to the ef- HACCP proposal is unnecessary since FSIS methods used for the risk assessment, in- fect that S. 343 would have on the efforts of has held at least 11 public meetings to dis- cluding any minority views. FSIS would the Department of Agriculture (USDA) to cuss and obtain comments on all aspects of have to respond in writing to all significant improve the meat and poultry inspection the reform proposal. Three of those meetings comments made in this report. The report system and the safety of the nation’s supply were two-day conferences which addressed and the FSIS response would become part of of food. The Food Safety and Inspection various scientific and technical issues raised the rulemaking record and would be subject Service (FSIS) published a proposed rule to by the rulemaking. Third, the National Advi- to judicial review provisions of S. 343. These significantly reform the federal inspection sory Committee for Microbiological Criteria procedures would significantly delay the es- system by requiring the adoption of science- in Foods, which provides impartial, sci- sential reform effort by a minimum of 6 based Hazard Analysis and Critical Control entific review of agency actions relative to months. Point (HACCP) procedures. S. 343 would food safety, also reviewed the HACCP pro- While peer review can be a useful tool to needlessly delay USDA’s efforts to reform posal and submitted comments. All com- improve the rulemaking analyses, the poten- the meat and poultry inspection system. ments received in connection with these pub- tial benefits from a peer review of the Foodborne pathogens in meat and poultry lic meetings have been placed in the rule- HACCP reform proposal does not justify de- products, such as E. coli, Salmonella and making record. laying reform of this system—a reform that Listeria are believed to cost the nation bil- S. 343 simply adds another level of review is supported by all interests. Similar review lions of dollars from lost productivity, medi- which in this case would result in an unnec- has already been occurring. The scientific cal costs, and death. The virulent E. coli bac- essary delay of essential food safety reform. foundation of the HACCP proposal, in short, teria alone is estimated to cause 20,000 ill- For this and other reasons, I would rec- would have been the subject of extensive re- nesses and 500 deaths annually. Young chil- ommend that the President veto S. 343 if en- view and comment as part of the rulemaking dren and the elderly are particularly vulner- acted in its present form. process. S 9668 CONGRESSIONAL RECORD — SENATE July 11, 1995 First, FSIS published the preliminary reg- All that’s to the good; the only problem is The problem with the Dole bill, co-spon- ulatory impact analysis in the Federal Reg- that regulatory matters are rarely that tidy. sored by Senator J. Bennett Johnston, Dem- ister for comment with the proposed HACCP Among much else, they often involve a great ocrat of Louisiana, is that its complex lan- rule. The NPRM contained a preliminary deal of scientific guesswork, and the bene- guage would not fulfill promises made by the cost-benefit analysis and risk assessment fits—of a cleaner lake, for example—often sponsors. Mr. Dole says his bill would not which explained the assumptions regarding can’t be quantified. The questions are fur- override existing health and safety laws that the risks and costs of foodborne illness to ther complicated when the winners and los- explicitly forbid balancing benefits against the public, the costs of the proposed rule to ers aren’t the same people. Whether or not to costs nor invite judicial challenge of the the regulated community, and the range of issue a particular rule will always be in part minute procedures by which agencies con- benefits in terms of reduced foodborne ill- a value judgment. The cost of compliance duct their analyses. But the actual words ness that the proposed HACCP rule would should be a larger factor in reaching such and likely impact of the bill provide no deci- achieve. Before publishing any final regula- judgments than it has often been in the past; sive protections. tion, FSIS will revise and finalize this cost- it should not be the only factor. That’s the The bill builds in elaborate petition rights benefit analysis based on the comments re- policy zone that this bill seeks to define. by which regulated industries can force re- ceived. Second, peer review of the HACCP It isn’t easy. The bill now forbids an agen- view of existing regulations. That will allow proposal is unnecessary since FSIS has held cy to issue a major rule without a finding the affected industries to tie up regulations at least 11 public meetings to discuss and ob- that the benefits ‘‘justify’’ the costs. Some in court and bury agencies in costly adminis- tain comments on all aspect of the reform deregulatory advocates think that’s too trative reviews. The bill also establishes proposal. Three of those meetings were two- weak a word and want the bill to read ‘‘out- seemingly contradictory standards. In some day conferences which addressed various sci- weigh’’ instead. The bill says that, in requir- sections it tells agencies to pick rules that entific and technical issues raised by the ing the weighing of benefits against costs, generate large benefits relative to their rulemaking. Third, the National Advisory the intent is not to ‘‘supersede’’ but to ‘‘sup- costs, but in other places it favors rules that Committee for Microbiological Criteria in plement’’ the ‘‘decisional critera’’ in other simply minimize cost. Foods, which provides impartial, scientific statutes. Environmentalists and the admin- Mr. Glenn’s bill fixes many of these review of agency actions relative to food istration say that’s a word game and that missteps. It would allow industry to chal- safety, also reviewed the HACCP proposal the bill would still override the other stat- lenge only arbitrary or capricious rules, and and submitted comments. All comments re- utes—clean air, clean water and all the not procedural miscues. It would cut admin- ceived in connection with these public meet- rest—because the supplementary standard istrative burdens by limiting cost-benefit ings have been placed in the rulemaking would still have to be met. The bill suggests analysis to major rules. Mr. Glenn would in one place that courts could toss out agen- record. protect against overzealous rule-making by S. 343 simply adds another level of review cy actions only if arbitrary or capricous—the subjecting new rules to review by outside ex- which in this case would result in an unnec- current standard—but elsewhere says the perts and giving Congress 45 days to review agency actions would also have to be sup- essary delay of essential food safety reform. major rules before they go into effect. That ported by ‘‘substantial evidence,’’ a higher For this and other reasons, I would rec- puts Congress, rather than the courts, in standard. ommend that the President veto S. 343 if en- Our own sense is that regulating regula- charge. There is no problem with the existing regu- acted in its present form. tion may turn out to be as hard as regulating The Office of Management and Budget ad- anything else, which suggests that there’s a latory system that warrants Mr. Dole’s radi- vises that there is no objection to the pres- limit to what can likely be constructively cal approach. Why not start with the Glenn entation of this report to the Congress. accomplished by this bill. To require as clear bill, and do more later if necessary? Mr. President, I know that is a a statement as possible of the risks to which lengthy statement this morning. But I a rule is addressed (how serious are they? [From the Plain Dealer, July 9, 1995] wanted to get my views in. We did not how sure can we be?) as well as the likely REASON AND REGULATION have opening statements yesterday. I costs and benefits of compliance (and of rival Sen. John Glenn, a longtime aficionado of think I have laid out today the major approaches) is absolutely the right thing to dry but important issues, is not about to do. To insist that an agency demonstrate differences between S. 343, the bill be- change his image with his latest mission; a that a rule is sensible policy—plainly, that’s bid to temper legislation that would weaken fore us now, and S. 1001. S. 1001 is based right as well. the federal government’s power to impose on the bill that came out of the Gov- The question is, demonstrate where and to regulations. ernmental Affairs Committee on a 15–0 whom? The bill is set up to be enforced But however unglamorous his latest cru- unanimous vote, except for the three through litigation. The courts would become sade may be, there is no question that Glenn changes I mentioned, which are im- the arbiters of whether benefits had been is making a critical contribution on an issue provements to the bill. shown to ‘‘justify’’ costs—but the courts are that is far more consequential than it Mr. JOHNSTON. Will the Senator the wrong place to make such judgments. sounds. At stake is the federal government’s There’s a better idea in a rival bill; when a yield for a question? ability to protect Americans from all sorts major rule is issued, sent it first to Congress, of health, safety and environmental dangers. Mr. GLENN. I hope people will look which would have, say, 45 days in which to Glenn, the ranking Democrat on the Gov- very carefully at these differences and, veto it or let it take effect. It’s Congress, ernmental Affairs Committee, is leading the at the appropriate time, we may want after all, that passed the laws that gave rise challenge to a sweeping regulatory-reform to recommend or may submit as a sub- to the regulations. Since these are essen- bill pending on the Senate floor. stitute S. 1001. I yield the floor. tially political judgments anyway, let Con- The bill, offered by Majority Leader Bob gress also be the one, on the strength of all EXHIBIT 1 Dole, would slow down the regulatory proc- the studies this bill would require, to bless ess by subjecting a broad range of regula- [From the Washington Post, July 6, 1995] or block the results. That’s the right way to tions to cumbersome risk-assessment and REGULATING REGULATION do it. cost-benefit studies. It also would make it The Senate is about to embark on a major easier for industries to fight regulations debate over regulatory reform. The fun- [From the New York Times, July 7, 1995] with lawsuits and petitions. The Dole bill, damental issue is how much weight to give OVERKILL IN REVISING REGULATION which already has been moderated a bit to to costs in measuring the costs and benefits Senator Bob Dole’s bill to reform regu- draw some Democratic support, is generally of regulation. The principal bill is sponsored latory procedures would erect needless ob- similar to legislation already passed by the by Majority Leader Bob Dole. Its backers stacles to adopting Federal health, safety House. say, we think with cause, that in the last 25 and environmental rules. Its excessive provi- Glenn, however, hopes to moderate the to 30 years particularly, too many federal sions invite filibuster by angry Democrats Senate bill further. Though he embraces regulations of too many kinds have been is- and a Presidential veto. The majority leader Dole’s overarching goal of reducing unneces- sued without sufficient regard to cost. That’s could exercise better leadership by joining sary government regulation, as well as some partly because these costs don’t show up in forces with John Glenn, Democrat of Ohio, of Dole’s prescriptions, he is wisely warning any budget. The politicians can impose whose alternative bill would bring common that the Dole bill poses a new bureaucratic them, and for all practical political pur- sense to Federal rules, not extinguish them. risk: that the government will become en- poses, they disappear. Both Mr. Dole and Mr. Glenn start off right tangled in even more paperwork from a flur- The legislation seeks to impose greater by requiring Federal agencies to weigh bene- ry of new litigation, cost-benefit analyses, discipline by requiring more use of both risk fits against costs to weed out regulations and risk-assessment studies. assessment and cost-benefit analysis, the that do more harm than good. The calcula- Glenn is proposing a more reasonable al- first to lay out more clearly the risks that tions are necessarily inexact, especially ternative—a bipartisan regulatory-reform each rule is meant to abate, the second to where non-quantifiable benefits, like the bill almost identical to one approved earlier compare the expected benefits and costs of value of clean air over the Grand Canyon, this year by the Government Affairs Com- compliance. It would then require a finding are involved. But forcing agencies to explain mittee. Glenn’s bill contains numerous pro- that the benefits are somehow commensu- the pros and cons of rules and justify their visions designed to streamline the federal rate with the costs. wisdom gives the public vital information. regulatory process, but it takes a less drastic July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9669 approach than Dole’s. Glenn’s bill, for exam- Mr. GLENN. He is talking about peer in the Federal Register of the question ple, would require risk-assessment and cost- review and subjecting it to judicial re- of whether or not it is a major rule, benefit studies of regulations expected to view. whether or not it pertains to health, have an economic impact exceeding $100 mil- Mr. JOHNSTON. I invite my friend safety, or the environment, or whether lion; Dole’s bill would apply to rules with an impact of $50 million. from Ohio to go back and read the let- or not it affects small business requir- When the Senate returns this week from ter. He may be also complaining about ing the reg-flex—that must be pub- its holiday recess, negotiations are likely to judicial review provisions. Did the Sen- lished in the Federal Register and ap- resume over a possible compromise between ator have any judicial review in his peal taken on that limited question the Glenn and Dole versions. Glenn should proposal? within the first 60 days. Does the Sen- hang tough as long as possible, knowing that Mr. GLENN. Of the final rule. Of the ator agree with me that that is not any compromise he endorses is likely to win final rule only. In S. 1001, we do not what—— Senate approval and then be watered down permit judicial review at each step Mr. GLENN. Well, what I will have to further in negotiations with the House. along the way, as is provided in S. 343. do, I answer my colleague, I would The rules of regulating may not be most have to get a clarification from the politicians’ idea of an exciting cause. But it That is what I mentioned several times is well worth Glenn’s time and effort. this morning. That is just a lawyer’s Secretary as to exactly what he meant dream, as I see it, because they can in some of this. There can be two inter- Mr. GRASSLEY addressed the Chair. challenge at any point along the way pretations of it, as there can be dif- Mr. JOHNSTON. Mr. President, will virtually where we provide for a final ferent interpretations as to whether ju- the Senator yield for a question? rule. You can take the whole rule- dicial review is required each step The PRESIDING OFFICER (Mr. making process, and once it is ready to along the way. That is not certain at ASHCROFT). The Senator from Iowa. become finalized, to become a rule, this point. I think there are different Mr. JOHNSTON. Will the Senator then it can be challenged in court. interpretations of that. I believe that from Ohio yield for a question? Then you can have judicial review. is one of the areas in which we had Mr. GLENN. I yield the floor. Mr. JOHNSTON. Is the Senator trouble getting language clarified, was Mr. JOHNSTON. He will not yield for aware that S. 343 does not allow judi- it not? a question? cial review at every step along the Mr. JOHNSTON. I think the Glenn Mr. GLENN. I yield the floor. way? It simply allows an interlocutory bill is ambiguous on that question. I do Mr. JOHNSTON. He yields the floor review for three limited questions. not believe S. 343 is in its present form. or yields for a question? First, whether it is a major rule; that We will debate that at a separate time. Mr. GLENN. Yield for a question. is, whether its impact will be $50 mil- I am simply saying that the Glenn bill Mr. JOHNSTON. I thank the Senator lion—and I hope we can change that to is subject to the same thing on peer re- from Ohio. Mr. President, the Senator $100 million—but the size of the rule. view that he says the Secretary of Ag- from Ohio just read a copy of a letter Second, whether it is a matter affect- riculture says S. 343 has. Only ours is from Secretary of Agriculture Dan ing health, safety or the environment, more flexible with respect to peer re- Glickman to Democratic leader TOM which would require a risk assessment. view than his because we allow for in- DASCHLE dated July 11 which he read in Third, whether it would require the formal peer review, and the Glenn bill full which recommended veto because reg-flex for small business. And that does not. Mr. GLENN. S. 343 would take effect the Dole-Johnston bill added another limited appeal would have to be made sooner and would affect these rules level of procedure, which would be the in 60 days. That is not to give a law- more, where our effective date is later. peer review of these matters in food yer’s dream; that is to give certainty, safety. Mr. JOHNSTON. Now, if I may ask so that you do not, at the end of the the Senator this. The Senator said that I am looking at the Glenn substitute, process, have to go back and do the particularly pages 27, 35, 36, and 37, and under S. 343 rules automatically sun- peer review and the risk assessment if set. Now, two questions: I see a peer review situation of exactly you were incorrect about the size of the sort that Secretary Glickman de- First, is he not aware that in S. 343 the impact of the rule. Now, that is not we now provide—this has been added scribes. I ask the Senator from Ohio, what he is complaining about here, am I not correct, does he not include since it originally started—that any in- that interlocutory appeal. That is a terested party may petition the court the same kind of peer review and, in- separate thing. Would the Senator not deed, that includes on page 27 review of of appeals for D.C. to get an extension agree with me that I have correctly of up to 2 years upon a showing that the Food Safety and Inspection Service stated what S. 343 states, and if I have the rule is likely to terminate, that the for peer review? not stated it correctly, would he cor- agency needs additional time, that ter- Mr. GLENN. I think what the Sec- rect me on how I have misstated it? minating the rule would be in the pub- retary is complaining about is the ef- Mr. GLENN. Well—— lic interest, and that the agency has fective date on this. Ours would not Mr. SIMON. Parliamentary inquiry, not expeditiously completed its review. have the same time of effectiveness as Mr. President. You cannot only get an extension of 2 S. 343. The PRESIDING OFFICER. The Sen- years, but you can get such court or- In addition, as the Senator from Lou- ator from Iowa has the floor. ders as are appropriate, such as to com- isiana will note, one of the major dif- Mr. SIMON. That was my question: plete the rulemaking, or commence the ferences he had with S. 343 is making Who has the floor? rulemaking, or advance the schedule, the record subject to judicial review The PRESIDING OFFICER. The Sen- whatever court orders are necessary; provisions which could delay things in ator from Ohio yielded the floor. The and is he aware of that, and in light of a major way, as he says at the top of chair recognized the Senator from that, would he not say that a sunset is the second page of his letter. I might Iowa, who yielded for this colloquy. not automatic under S. 343 but is sub- add, the letter was not just to the mi- Mr. GLENN. Repeat your question. ject to that extension? nority leader, it was to both the major- Mr. JOHNSTON. The Senator says Mr. GLENN. What happens at the end ity and minority leaders. that the Secretary of Agriculture ob- of 2 years? Two years is not much in Mr. JOHNSTON. Do I misread this jects because there is an interlocutory this rulemaking thing, as he is aware. when he says in the last paragraph on appeal provided in S. 343. Having recog- Sometimes it takes 3 or 4 years to get the first page that ‘‘S. 343 would sig- nized that both bills, the Glenn sub- a rule put into effect. Two years is not nificantly delay this essential reform stitute and S. 343, provide for an appeal a long period of time. by requiring USDA to establish a peer from the final agency action. So what Mr. JOHNSTON. After the 3 years, 5 review panel which satisfies the cri- the Senator from Ohio says is that the years. teria in S. 343, submit a cost-benefit Secretary of Agriculture is objecting Mr. GLENN. At the end of that time analysis and risk assessment [analyses] because of an interlocutory appeal. My it would sunset, is that correct? to the panel, and convene the panel to question to him is, would he not agree Mr. JOHNSTON. At the end of the 5- review the analyses’’? He is not talking with me that that interlocutory ap- year period, it would sunset. Keep in about appeal or effective date, he is peal—that is, an appeal taken within mind that it did not get on the sched- talking about peer review, is he not? the first 60 days after the publication ule and that the person at the agency S 9670 CONGRESSIONAL RECORD — SENATE July 11, 1995 was in charge of the schedule, and so ment, because there are a lot of this issue and for this reason I fully he or she could advance the rule as misperceptions about the legislation. support it. quickly as he could. Would the Senator I support the Dole amendment on E. But I think what is at issue here is say that 5 years is not a sufficient coli and other food borne pathogens. I this. The regulators and organizations time? would like to be able to argue that the in this town who support massive big Mr. GLENN. It took 5 years to get amendment is necessary to protect the Government regulation—and of course put into place. public health from threats to food safe- Members of this body who are support- Mr. SIMON. Point of order, Mr. ty. ive of that concept as well—see their President. But I think we have to be honest power to stretch the meaning of legis- The PRESIDING OFFICER. The Sen- with each other. The regulatory reform lation to an extreme, to do what is in ator from Iowa has the floor. Does he act of 1995—that is the title of the bill their mind everything the law will yield for an inquiry? before us—will not in any way jeopard- allow, just stretch the intent of Con- Mr. JOHNSTON. Will the Senator ize the safety of this country’s food gress as much as you can—they see this from Iowa yield for another question? supply. So then why the Dole amend- legislation as impeding their power. Mr. GRASSLEY. I will yield. But is ment? They do not like that. It is this power it going to come to a close soon? The Dole amendment is necessary in this town versus, then, the power of Mr. JOHNSTON. Yes. due to fear mongering and scare tactics the people at the grassroots who want Mr. GRASSLEY. I ask unanimous used by opponents of regulatory reform to make sure that public health and consent to extend the time to recess in this town. They are doing this in an safety is protected. We all want that to until 12:45. attempt to kill this legislation, S. 343, happen. But we want to make sure that Mr. GLENN. Reserving the right to which has been caught up in the poli- it is done in a reasonable way—not object. tics and misinformation over the pro- from emotion but from reason. Mr. GRASSLEY. Why do I not take posed meat inspection regulations. The regulators’ mindset is to look at the floor then. I thought this was a We have all seen television commer- scientific data differently than the way good exchange. cials, and we have seen the political scientists look at scientific data. This Mr. JOHNSTON. If I could ask one cartoons characterizing Republicans, legislation is going to make sure that more question. in particular, as supporting ‘‘dirty Mr. GLENN. I could not agree to risk assessment and regulation gen- meat.’’ It makes it sound like we are doing that. That is done by the leader- erally has a scientific basis. It is a way rolling back meat inspection require- ship. of taking emotion out of so much of Mr. JOHNSTON. One more question. ments. This is demagoguery, Mr. Presi- the debate that comes with regulation. Did the bill which the Senator has dent, at its worst. There is not a Mem- There have been many instances in touted that came out of committee by, ber of this Chamber that would put the which regulatory agencies have issued I think, a unanimous vote, not provide health of this Nation’s children at risk, regulations and then they would put for a sunset of all bills with no exten- or anybody of any age at risk. together panels of scientists, most Yet, the administration and the op- sion at the end of 10 years on the sun- from academia, to come in and look at ponents of this bill would have you be- set provisions. Did that bill not so pro- the science behind the regulations that lieve that the proposed meat inspection vide? are issued. There are instances in Mr. GLENN. We have changed that in regulation would somehow be delayed which the scientific panels would say the Glenn-Chafee bill. or even eliminated altogether by this that the science is not good; where the Mr. JOHNSTON. With a 5-year exten- bill. That is simply not the case. panels would not back the science of sion. This bill already allows agencies to the regulatory agency that was behind Mr. GLENN. We changed the sunset avoid conducting cost-benefit analyses the regulation writing. Panels of sci- and review provision. and risk assessment when a regulation entists would say to the agency, ‘‘Go Mr. JOHNSTON. The bill you voted is necessary to avoid an ‘‘emergency or back to the drawing board. Start over for in committee. health safety threat.’’ And the words again.’’ The politics of the agency or Mr. GLENN. We no longer have a ‘‘emergency or health safety threat’’ the politics of this town gets in the sunset in this. The bill came out in are from the legislation. Furthermore, way of good regulation writing because committee and we changed that later even if this exemption were not in the of the regulators’ mindset to not view on. bill, the proposed regulation on meat scientific data the same way that sci- Mr. JOHNSTON. The bill out of com- inspection has already passed cost-ben- entists would. mittee did have the sunset and did not efit scrutiny by both USDA and OMB. The attitude in this town is to have have any ability to get court orders to So a regulation that they fear is in just enough science as a rationale for order the agency to take action. jeopardy has already gone through this your regulation. The attitude in this Mr. GLENN. No, it came out with a process to satisfy this legislation. The town is that we do not want science to 10-year limit, with a Presidential right administration and opponents of regu- disprove anything. Regulatory agencies to extension. If the agency did not re- latory reform somehow seem to want it do not want science to disprove any- view it, it would sunset. We now realize both ways. On the one hand, they argue thing. What they basically want is just that was wrong because somebody that if this bill is passed, there will be enough data to support a regulatory could delay it over in an agency and a serious and imminent threat to the decision already made, a political deci- sunset a bill by not doing anything. So Nation’s food supply. sion already made. we took that out. S. 1001 does not have If this argument is correct, the ex- So what this legislation does is put that in there. emption in this bill allows for the im- in process a procedure by which sci- Mr. JOHNSTON. I thank the Senator plementation of the meat inspection entific evidence is going to carry a from Iowa for yielding. regulation without conducting cost- greater weight. Most important, Mr. GRASSLEY. The Senator from benefit analysis and risk assessment. though, there is going to be judicial re- Louisiana has been so involved in this But, on the other hand, they argue that view and congressional review of the legislation, so I thought it was very if the exemption does not apply, the decisionmaking process so regulators, important that I give him time to have meat inspection regulation will be held who are told to use sound science, will that communication with the Senator up because it would not pass muster have to use sound science. Or, if they from Ohio, because I think there is a under this bill. do not, there are going to be other peo- lot of misperception about this legisla- That is not true. Because, appar- ple looking over their shoulders. tion. I think what the Senator from ently, the regulation has already This legislation is going to make the Louisiana just had to say in the way of passed the cost-benefit analysis that is regulatory process more intellectually asking questions helped clear up some required. So even though I do not be- honest. It is going to eliminate those of the misperceptions about this legis- lieve this amendment is necessary, I instances in which the politics of this lation. think it does help clarify the meaning town or the politics of a regulatory Also, the Dole amendment is before of the bill. Most important, it is going agency say which regulations they are us. I want to speak on the Dole amend- to stop opponents from demagoging on going to write, and then scientists July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9671 come in and say sound science does not Let me give another example. leading illness of all U.S. children. A back up the regulation, so go back to When it was proposed that we have young boy named Kyle Damitz spoke the drawing board. There should not be safety belts in our cars, the automobile at this press conference. He and his any more need to go back to the draw- industry was not enthusiastic about brother both spoke. Here is what Kyle ing board unless a court would say that that, as many of us here will recall. Damitz had to say. they should, or the Congress would say Here is Henry Ford II, in response to Hi, my name is Kyle Damitz. that they should, through the process this proposal, in 1966. I am 6 years old. of review. Many of the temporary standards are un- I go to Farnsworth school. It is very important that we have a reasonable, arbitrary and technically unrea- I have asthma. sound scientific basis for regulation. sonable. If we cannot meet them when they I love to play sports. In the summer when the air is dirty, I are published, we’ll have to close down. But it is more important that the regu- can’t go outside. I can’t breathe in the dirty lation writers are held accountable, by This was seatbelts. They were going air. having somebody look over their shoul- to have to close down American auto- And my mom makes me come inside. der. This legislation is very rational, a mobile manufacturing because of seat- This is not fair to me and my brothers and very rational approach to regulation belts. everyone with asthma. writing. This legislation is badly need- We voted for seatbelts and, lo and be- We need to tell the president, to make new laws. So that all the kids with asthma can ed to make sure that regulation is hold, it has not hurt American manu- within the least costly approach to play outside all the time. facturing. As a matter of fact, the Jap- How do you do a cost-benefit analysis give us the most benefit. anese were there ahead of us and we This legislation is simply common on kids playing outside who have asth- are saving thousands of lives every ma? I think you have to recognize the sense, and that is what we do not have year. enough of in this town—maybe even in cost-benefit test simply is not a work- Here is Lee Iacocca, and I am ordi- able test. the laws we write, but most important narily a Lee Iacocca fan. He was then in the regulations. That is why Senator Mr. JOHNSTON. Mr. President, will vice president of Ford Motor Co., in a the Senator yield on that point? DOLE’s amendment is very important, meeting with President Richard Nixon, Mr. SIMON. Let me finish, and then to take some of the emotion out of this April 27, 1971: I will be happy to yield to my colleague debate. It is very important that we . . . the shoulder harness, the head rests from Louisiana. get some of this legislation passed, this are complete wastes of money. You can see The State of Illinois tried a cost-ben- regulatory reform bill passed, so we that safety has really killed all of our busi- efit criteria in terms of its water and take some of the emotion out of the ness. We’re not only frustrated, but we’ve air pollution and found it just was not whole process of regulation writing in reached the despair point. workable. this town. Now, all of a sudden it sells cars. Now Jacob Dumelle, the chairman of the Mr. President, I have a request from they are bragging about the very Pollution Control Board from 1973 to the leader to read a unanimous-consent things that they opposed: Airbags. I 1988 commented about why the Illinois request. can remember, in 1990, the fall of 1990, Pollution Control Board had banned The PRESIDING OFFICER. The Sen- right after the election I wanted to buy ator from Iowa. the mandatory economic impact analy- an American car. The only American sis. This is a quote from him: Mr. GRASSLEY. Mr. President, I ask car that had airbags on the passenger unanimous consent that the order for Cost-benefit analyses are expensive, hard side was a Lincoln—meaning no dis- to do. In the end, you try to put a dollar the recess at 12:30 be delayed for up to respect, I am not the Lincoln type. I 15 minutes in order to allow for a state- value on human lives. am a Ford, Chevrolet, or Plymouth. I You just cannot do that effectively. ment by Senator SIMON. could not buy an American car that The PRESIDING OFFICER. Without The cost-benefit test just does not had airbags on the passenger side. I fi- make sense. objection, it is so ordered. nally bought a Chevrolet that had Mr. GLENN. Reserving the right to Let me quote, and I ask unanimous them on the driver’s side, not on the object. consent, Mr. President, that an article The PRESIDING OFFICER. Is there passenger side. Now they are bragging of July 17 from Business Week be print- about the very things they opposed. objection? ed in the RECORD. Without objection, it is so ordered. If this law were not in effect, would There being no objection, the mate- The Senator from Illinois is recog- we have moved ahead on seatbelts and rial was ordered to be printed in the nized. airbags? I think the answer is clearly RECORD, as follows: we would not have. Mr. SIMON. Mr. President, I thank [From Business Week, July 17, 1995] Let us take a look at a few other my colleague from Iowa for making the ARE REGS BLEEDING THE ECONOMY? unanimous-consent request. things. Lead solder out of food cans. MAYBE NOT—IN FACT, THEY SOMETIMES BOOST What we need in this field is some These are examples from the FDA. COMPETITIVENESS balance. There is no question we have Final rules published June 27, 1995; ef- (By John Carey, with Mary Beth Regan) overregulation. Anyone, in any field—I fective date to stop manufacturing do not care whether it is education, cans with lead solder is December 27, To the Republican Congress, regulations 1995. What is going to happen if this are like a red cape waved in front of a raging medicine, what the field is—recognizes bull. ‘‘Our regulatory process is out of con- we have overregulation. But the bill law comes into effect? I do not know. trol,’’ says House Science Committee Chair- that came out of the committee headed Requiring quality standards for mam- man Robert S. Walker (R–Pa.). He and other by Senator ROTH and Senator GLENN, mography tests, publication of pro- GOP leaders charge that nonsensical federal being the ranking member, that came posed regulations are planned for Octo- rules cripple the economy, kill jobs, and sap out 15 to nothing—that strikes me as ber 1995. You have people who are not innovation. That’s often true: Companies having that balance. Let us just take a providing quality tests for women. must spend enormous sums making toxic- look at a few examples. What happens if this goes into effect? waste sites’ soil clean enough to eat or ex- Cables and lead wires in hospitals have tracting tiny pockets of asbestos from be- Iron poison—between 1990 and 1993, 28 hind thick walls. children under the age of 6 died from caused the deaths of a number of peo- That’s why GOP lawmakers on Capitol Hill iron poisoning after taking adult iron- ple. FDA has proposed a regulation to want to impose a seemingly simple test. In a containing products. Overdoses of iron require that cables which connect pa- House bill passed earlier this year and a Sen- tablets by children can result in intes- tients to a variety of monitoring and ate measure scheduled for a floor vote in tinal bleeding, shock, coma, seizures, diagnostic devices be designed so that July, legislators demand that no major regu- or possibly death. Iron is now a leading the cables could not be plugged di- lation be issued unless bureaucrats can show cause of poisoning deaths for children rectly into a power source or electric that the benefits justify the costs. ‘‘The reg- outlet. Proposed rules were published ulatory state imposes $500 billion of burden- under the age of 6. some costs on the economy each year, and it The FDA has proposed warning la- June 12, 1995. What happens? is simply common sense to call for some con- bels. This bill might well delay what Take another example, Mr. Presi- sideration of costs when regulations are is- could come, and would permit judicial dent. I had a press conference with two sued,’’ says Senate Majority Leader Bob Dole review that clearly could cause delay. little boys with asthma. Asthma is the (R–Kan.). S 9672 CONGRESSIONAL RECORD — SENATE July 11, 1995 That sounds eminently reasonable. But technology that boosted productivity while the last sentence of this article. This is there’s a serious flaw, according to most ex- lowering worker exposure. not from some wild-eyed radical liberal perts in cost-benefit calculations. ‘‘The les- Of course, it’s possible to find examples of publication. This is from Business underestimated regulatory costs. And even son from doing this kind of analysis is that Week. it’s hard to get it right,’’ explains economist critics of the GOP regulatory reform bills Dale Hattis of Clark University. It’s so hard, aren’t suggesting that cost-benefit analysis Overreliance on cost-benefit analysis could in fact, that estimates of costs and benefits is worthless. ‘‘We should use it as a tool’’ to make things worse for business, workers, and may vary by factors of a hundred or even a get a general sense of a rule’s range of pos- the environment. thousand. That’s enough to make the same sible effects, says Joan Claybrook, president I think we ought to be going back to regulation appear to be a tremendous bar- of the Ralph Nader-founded group Public Cit- the bill by our colleague from Dela- gain in one study and a grievous burden in izen. But she and other critics strongly op- ware, Senator ROTH. I think that has the next. ‘‘If lawmakers think cost-benefit pose the Republican scheme to kill all regs balance. I think this bill does not have that can’t be justified by a cost-benefit exer- analysis will give the right answers, they are balance. This bill is going to end up in deluding themselves,’’ says Dr. Philip J. cise. As a litmus test for regulation, ‘‘the un- certainties are too broad to make it terribly endless litigation. I know my colleague Landrigan, chairman of the community med- from Louisiana is sincere, as is the ma- icine department at Mount Sinai Medical useful,’’ says Harvard University environ- Center in New York. mental-health professor Joel Schwartz. jority leader. But I think it is moving There’s a greater problem: The results What is useful is moving away from a com- in the wrong direction. from these analyses typically make regula- mand-and-control approach to regulation. I am pleased to yield to my colleague tions look far more menacing than they are There’s widespread agreement among compa- from Louisiana for a question. in practice. Costs figured when a regulation nies and academic experts that bureaucrats Mr. JOHNSTON. I ask my friend, is issued ‘‘almost without exception are a should not specify what technology compa- would he not agree that benefits to profound overestimate of the final costs,’’ nies must install. It’s far better simply to set a goal, then give industry enough time to health, safety, or the environment are says Nicholas A. Ashford, a technology pol- by their nature nonquantifiable; icy expert at Massachusetts Institute of come up with clever solutions. ‘‘We need the freedom to choose the most economic way to human life, health, clean air? Technology. For one thing, there’s a tend- meet the standard,’’ explains Alex Krauer, Mr. SIMON. They are not. That is ency by the affected industry to exaggerate chairman of Ciba-Geigy Ltd. Krauer, for ex- the regulatory hardship, thereby overstating why I think we have to be very, very ample, points to new, cleaner, processes for the costs. careful in this area. producing chemicals that end up being far More important, Ashford and others say, If I may regain my time just for a cheaper than installing expensive control flexibly written regulations can stimulate minute, when you talk, for example, in technology at the end of the effluent pipe. companies to find efficient solutions. Even an area that the Senator from Louisi- critics of federal regulation, such as Murray DUMB THINGS ana knows much about, and the Presid- L. Weidenbaum of Washington University, But when goals are being set for industry, ing Officer does, and I do, and that is point to this effect. ‘‘If it really comes out of the proposed cost-benefit analysis approach flood control, then when you talk your profits, you will rack your brains to re- could have a perverse effect. That’s because agencies are rarely able to foresee the low- about cost-benefit, it is very easy. duce the cost,’’ he explains. That’s why When you talk about something like many experts say the $500 billion cost of reg- pollution processes industries may concoct. ulation, bandied about by Dole and others, is Smokestack scrubbers are a good example. asthma, then you are talking about way too high. The bean-counters will use the known price something where it becomes very, very Take foundries that use resins as binders of expensive scrubbers in their analyses. difficult. in mold-making. When the Occupational Their cost-benefit calculations will then Mr. JOHNSTON. Is the Senator Safety & Health Administration issued a new argue for less stringent standards. And those aware that at my behest, we put in lan- standard for worker exposure to the toxic won’t help spark cheaper technology. The re- guage in the bill contained on page 36 chemical formaldehyde in 1987, costs to the sult can be the worst of both worlds: costlier that says if scientific, technical, or industry were pegged at $10 million per year. regulation without significant pollution re- economic uncertainties or ductions. ‘‘It’s a vicious circle,’’ explains The assumption was that factories would nonquantifiable benefits to health, have to install ventilation systems to waft Stone. ‘‘If you predict that the costs are away the offending fumes, says MIT econo- high, then you stimulate less of the innova- safety, or the environment identified mist Robert Stone, who studied the regula- tion that can bring costs down.’’ by the agency in the rulemaking record tion’s impact for a forthcoming report of the There’s no doubt reform is needed. ‘‘Frank- make a more costly alternative that congressional Office of Technology Assess- ly, we have a lot of dumb environmental reg- achieves the objectives of the statute, ment (OTA). ulations,’’ says Harvard’s Schwartz. But he appropriately and in the public inter- puts much of the blame on Congress for or- BOTTOM LINES est, that that more costly alternative dering agencies to do dumb things. Now, may be accepted because of the Instead, foundry suppliers modified the Congress is tackling an enormously complex resins, slashing the amount of formaldehyde. issue without fully understanding the rami- nonquantifiable benefits to health, In the end, ‘‘the costs were negligible for fications. Schwartz and other critics worry. safety, and the environment, or be- most firms,’’ says Stone. What’s more, the Overreliance on cost-benefit analysis could cause of the uncertainty of science and changes boosted the global competitiveness make things worse for business, workers, and data? boosted the global competitiveness of the the environment. Is the Senator aware that that U.S. foundry supply and equipment industry, REGULATION ISN’T ALWAYS A COSTLY BURDEN amendment was added to this bill since making the regulations a large net plus, he argues. Many regulations cost much less than ex- that Business Week article was writ- While federal rules that improve bottom pected because industry finds cheap ways to ten? lines are rare, regulatory costs turn out to comply with them. Mr. SIMON. Let me just add, there is be far lower than estimated in case after COTTON DUST no question that the Senator from Lou- case (table). In 1990, the price tag for reduc- 1978 regulations aimed at reducing brown isiana has improved the bill before us. ing emissions of sulfur dioxide—the cause of lung disease helped speed up modernization Mr. JOHNSTON. Does that not cover acid rain—was pegged at $1,000 per ton by and automation and boost productivity in the exact things the Senator from Illi- utilities, the Environmental Protection the textile industry, making the cost of nois was talking about, the boy with Agency, and Congress. Yet today the cost is meeting the standard far less than predicted. the asthma, the kid with the lead? $140 per ton, judging from the open-market VINYL CHLORIDE Mr. SIMON. I think the answer is price for the alternative, the right to emit a Reducing worker exposure to this carcino- ton of the gas. Robert J. McWhorter, senior what is quantifiable and what is gen was predicted to put a big chunk of the nonquantifiable is going to become a vice-president for generation and trans- U.S. plastics industry out of business. But mission at Ohio Edison Co., says the expense automated technology cut exposures and matter of jurisdiction of the courts could rise to $250 when the next round of con- boosted productivity at a much lower cost. under this legislation. I think we are trols kicks in, ‘‘but no one expects to get to ACID RAIN going to have endless litigation. $1,000.’’ The reason: Low-sulfur coal got Mr. JOHNSTON. Under the definition Efficiencies in coal mining and shipping cheaper, enabling utilities to avoid costly of benefits, we have already included scrubbers for dirty coal. cut prices of low-sulfur coal, reducing the need to clean up dirty coal with costly scrub- the quantifiable benefits. That is put Likewise, meeting 1975 worker-exposure into your cost-benefit ratio. This says standards for vinyl chloride, a major ingredi- bers. So utilities spend just $140 per ton to ent of plastics, ‘‘was nothing like the catas- remove sulfur dioxide, vs. the predicted that this is a little extra that you are trophe the industry predicted,’’ says Clark $1,000. able to add. If you are not able to quan- University’s Hattis. He found in a study he Mr. SIMON. Mr. President, that arti- tify the value of life, which by its na- did while at MIT that companies developed cle is about this legislation. Listen to ture is nonquantifiable, or the value of July 11, 1995 CONGRESSIONAL RECORD — SENATE S 9673 clean air, then you can add that on and COMPREHENSIVE REGULATORY precluded from spending it on things have a more costly alternative. REFORM ACT that could really be more important That is exactly and precisely to deal The Senate continued with the con- and helpful to us. with the problem that my friend from sideration of the bill. Cost-benefit analysis, some people Illinois so eloquently described, which Mr. KYL addressed the Chair. say, is a new and a foreign concept. is the kid with asthma, the people with The PRESIDING OFFICER. The Sen- Well, businesses fail if they do not uti- safety belts, and all that. It is ator from Arizona. lize cost-benefit analysis. At every nonquantifiable. It is human life. You Mr. KYL. Mr. President, I would like turn, individuals are confronted with do not put a dollar value on human life to speak for a moment in support of decisions that require weighing the or on the value of clean air. the Dole amendment, and therefore in pluses and minuses and the benefits I urge my colleagues to go back and support of this legislation as we will and costs. These are decisions that we read on page 36 those words. I think it amend it. make every day. We call it common covers this like a hand in a glove. The question before us is whether or sense. When we decide to get in our Mr. LEVIN. Will the Senator from Il- not benefits justify costs. That is real- automobile and drive somewhere, we linois yield on that exact same point? ly all we want to know. Given that the know that the national highway fatal- ity and accidents statistics weigh fair- Mr. SIMON. I am pleased to yield to Judiciary Committee’s report places ly heavily toward the possibility that my colleague from Michigan. the regulatory burden on our economy at over $881 billion, I think that is a sometime in our life we are going to be Mr. LEVIN. I hope also all of us will reasonable question to ask. That aver- involved in an accident in which we are read that language which was referred ages just under $6,000 for every house- going to be harmed and yet we con- to by the Senator from Louisiana. But hold in this country—$6,000 that fami- sciously make the decision that be- what it does not cover are areas where lies in this country cannot spend on cause the benefits to us of arriving at we cannot quantify the benefits, such other things because the money has to our destination using our automobile as how many fewer asthma attacks will be given to the Government or has to are worth more than the risks, we de- result? That is quantifiable, let us as- be used in other ways to comply with cide to take those risks. sume for a moment. The value of avoid- the costs of regulation. In another more simple example, we ing it may not be quantifiable. But the That is why these costs are cloaked cross the street every day, and most of fact that we could avoid a certain num- in what amounts to a hidden tax. They us understand that there is some de- ber of asthma attacks, or deaths in are passed on through lower wages, gree of risk in crossing the street; peo- many cases, is very quantifiable. through higher State and local taxes, ple are harmed every day by doing We sought from the Senator from through higher prices, through slower that, but the benefits of us getting to Louisiana and others language which growth and fewer jobs. I said fewer our destination exceed the costs, or the would say that where you can quantify jobs. According to William Laffer in a potential risk to us in making that a reduction in deaths or asthma at- 1993 Heritage Foundation report, and I particular trip. tacks, we should then not be forced to am quoting: So as human beings, as families, as use the least costly approach. We may There are at least three million fewer jobs individuals, we make decisions, many want to reduce more asthma attacks in the American economy today than would decisions every day that involve some and save more lives with a slightly have existed if the growth of regulation over theoretical and sometimes not so theo- more expensive approach. We were un- the last 20 years had been slower and regula- retical risks to ourselves. Yet we do able to get that language. tions more efficiently managed. that knowingly, and we do that under- So, yes. It is very important that all To put it in perspective further, the standing that sometimes benefits can of us understand the point that is made Americans for Tax Reform Foundation outweigh those risks. It is the applica- by the Senator from Louisiana. But it found that each year Americans work tion of common sense. And what we are does not solve the problem which has until May 5 to pay for all Government asking for with respect to the regula- been raised by the Senator from Illi- spending. If you add the cost of regula- tions that are imposed upon us, is that nois. tions, each American has to work until there be a little bit more common Mr. SIMON. Mr. President, I think July 10—I believe that was yesterday— sense, a little bit more care to go into the dialog we have just had suggests in order to pay for all of the taxes and the development of these regulations. that my point is valid, that we are regulations imposed upon us. That is Now, one of my colleagues this morn- going to end up with the courts decid- over a half year of work to pay the ing spoke, and I thought made an ex- ing what is quantifiable and what is total cost of Government, and 2 cellent point, that Government gen- not quantifiable. I think we should months of that hard work must pay for erally is supposed to do for us what we move slowly in this area. I have been in the costs of regulation. As I said, that cannot do for ourselves. Most of us be- Government a few years now, Mr. is money families could spend making lieve that. We appreciate the fact that President. I was first elected to the their own decisions on how to spend for in many cases we cannot as individuals State legislature when I was 25. I am their own health care, safety, and edu- understand the risks involved and we now 66. I have found generally that cation. cannot police everything that could when we take solid, careful steps, we According to a 1993 IPI policy report, pose a particular risk to us. And so we are much better off than when we do regulations add as much as 95 percent ask the Government to do that for us. these sweeping things. to the price of a new vaccine. And Jus- We empower Government agencies to I think what we have before us now is tice Breyer, who has recently been ele- do tests, to do analysis, and to actually well intentioned, but too sweeping, in vated to the Supreme Court, wrote a establish standards. Then they fre- answer. The pendulum will go from one book called ‘‘Breaking the Vicious Cir- quently report those standards to us on cycle to the other. cle,’’ in which he poses the following a product or on a label or by some reg- Mr. President, I yield the floor. question: ‘‘Does it matter if we spend ulation precluding the manufacture or too much overinsuring our safety?’’ use of something that would be dan- f And he answers his own question. ‘‘The gerous to us. We do that certainly in our food in- RECESS money is not, nor will it be, there to spend, at least not if we want to ad- dustry in a way that is understood by The PRESIDING OFFICER. Under dress more serious environmental or all, in the approval of drugs and in the previous order, the hour of 12:55 social problems—the need for better many, many other ways. We ask the having arrived, the Senate stands in re- prenatal care, vaccinations and cancer Government to do for us what we can- cess until the hour of 2:15 p.m. diagnosis, let alone daycare, housing, not do for ourselves, to understand the Thereupon, the Senate, at 12:46 p.m., and education.’’ risks. That is called a risk assessment, recessed until the hour of 2:15 p.m.; In other words, Mr. President, it is to do a cost-benefit analysis. Indeed, whereupon, the Senate reassembled foregone opportunity in the sense that most Presidents since President Ford when called to order by the Presiding by spending this money on something have, in fact all Presidents I think Officer (Mr. GRAMS). where its benefits are marginal, we are have, in effect, imposed a cost-benefit