John Glenn

Mr. GLENN

Mr. GLENN. Mr. President, I yield myself 10 minutes.

Mr. GLENN. Mr. President, I do not really recognize what has happened here by the description we just heard on the floor. We have been negotiating in good faith. There has been a lot of progress made. We started out with decisional criteria. They wanted a least-cost. We wanted cost-benefit. The compromise was made that we go to greater net benefits. Some of the departments still have some problems with that. We are working some of those things out. So we have made progress in that area. Judicial review--it went to the final rule. But one of the real killers in this is the fact that we still have unlimited new petition processes. That is just a way of saying that anybody that has an interest in killing any particular legislation or any particular regulation will have the opportunity by the possibility of not just a few but hundreds and hundreds of potential routes in the petition process by which they can prevent legislation or prevent regulations being written that might benefit all of America. Yet, they can stop it with this particular bill with those petition processes. That is a killer. We made some proposals on that. It was my understanding, in talking to the majority leader on the floor about an hour and a half ago, that maybe there was some give in that area and perhaps we would be willing to talk about the petition process, which they were not willing to do before. Another one that is a killer on this is going to require that when an agency reviews the rule that all reasonable alternatives have to be considered. That is an infinite direction. That is a direction to do something that is probably not possible to do, to take all reasonable alternatives. We wanted to do what the distinguished Senator from Louisiana proposed back several days ago, and that was limit that to perhaps just three or four. We were willing to do that. That is fine. The sunset provision on this, we made progress in that particular area. On the special interest section, there were proposals made on that that they were willing to discuss. The toxics release inventory, we want to do that. At each step along the way what has happened is when we have gotten a letter, a proposal that listed the real answers to some questions we had, we have responded. We are in that same position right now. We are responding. A letter will go back which we worked on early today and earlier this afternoon. That letter is going back right now proposing some give and take in these particular areas. Why we have to go to a cloture vote now I do not know. My own personal bottom line on these things has narrowed down through all of this process over the last 2 weeks to the no new petition process, to limiting the reasonable alternatives to three or four, as was already agreed to, and to striking that section on special interests. That is the one that is a real killer as far as health and safety goes because it leaves the toxics release inventory. It takes it out. It takes out Delaney which needs modification but not just elimination. And food safety, health, things like that go by the board. So I just disagree strongly that we have not made considerable progress on this bill. Now let me start with some truths in this debate. We have heard lots of horror stories about bad regulations on the floor from the proponents of S. 343. I do not have to hear those on the floor. I get enough of them when I go back home. Many of the stories brought out on the floor here were just plain false. I gave the rebuttal to some of those things on the floor here where we think they went too far. Some of the ones were completely valid. We have pointed them out on the floor too. Let me respond to several of the accusations that the Senator from Louisiana has made about the Glenn-Chafee bill. He says our lookback provisions for review of existing rules has ``no teeth.'' That is wrong. We do have judicial review of the agency requirements to review rules, but we do not let special interests petition to put rules on the list. Instead, we provide a process where interest groups can appeal to Congress to have a rule reviewed. And that makes more sense. It is more fair. He says our judicial review language allows more avenues into reviewing parts of cost-benefit analysis and risk assessment than the Dole-Johnston bill. I do not feel that is true. In fact, I think it is not true. We state explicitly in our language that ``the court shall not review to determine whether the analysis or assessment conformed to the particular requirements'' of cost-benefit analysis and risk assessment. We would like them to do the same. I think we are making progress in that area, too. Senator Johnston wrote a letter to me, Senator Biden and Senator Baucus in March of this year stating all of his concerns with the Dole bill as it was then. Many of the issues he raised --like too much judicial review and the petition process--are still valid problems in the Dole-Johnston bill. In fact, he stated explicitly in his letter that he did not agree with a petition process for the review of rules. Now he is calling the Glenn-Chafee bill weak for not having such a process. No. 3, many have accused us of not really being serious about regulatory reform. Let me give you a little background on our good- faith effort to put together a viable regulatory reform package. The Governmental Affairs Committee reported out a strong regulatory reform bill with full bipartisan support 15 to nothing, coming out of committee with 8 Republicans and 7 Democrats. This bill formed the basis for the Glenn-Chafee substitute. It is a strong, a balanced approach to regulatory reform. It will relieve the regulatory burden on businesses as well as protect the environment, the health, and the safety of the American people. On the other hand, the Judiciary Committee, on which the Dole- Johnston bill is based, had a very divisive debate on this bill, and they ended up reporting out the bill without amendment. Before bringing the Dole-Johnston bill to the floor, we sat down with the supporters of S. 343 and had very serious negotiations on two different occasions. We outlined our concerns; we provided written changes to their language. And for the most part our concerns were dismissed out of hand. Now, after a strong vote on the Glenn-Chafee substitute and two losing cloture votes, they wanted us to come back to the table and negotiate one more time. And we did that yesterday because we want regulatory reform. I am as dedicated to regulatory reform as anybody in this body. We need it. But we want commonsense reform. We do not want regulatory rollback that is disguised in the rhetoric of regulatory reform. We cannot tie the agencies up in unneeded bureaucratic steps for a variety of new lawsuits. That is not regulatory reform. That is what this bill does. We gave Senator Hatch a list of changes that were necessary before we could consider supporting the Dole-Johnston bill. They appear to be moving on a few important issues. Today they are proposing to: First, change--this was yesterday--change the ``least cost'' language in decisional criteria and replaced it with ``greater net benefits.'' Second, modify a few parts of their judicial review language, including getting rid of ``interlocutory review,'' which is encouraging. However, there are still some questions in this area. Third, they would possibly adopt the sunset language in the Glenn- Chafee bill. Fourth, they said they would discuss the toxics release inventory. But these are not definite changes, and, even so, this bill still has significant problems. First, it has six new petition processes. All, except one, are judicially reviewable and must be granted or denied by an agency within a certain period. This is just a formula to tie up the agencies and prevent them from doing their jobs effectively. They do not change the effective date of this bill. That means that as soon as this bill becomes law everything on that date must immediately comply with the many rigorous requirements of this bill. This captures all the rules that are out there in the pipeline right now, and will send agencies back to square one on some regulations delaying them unnecessarily. This is a poor use of Government resources. Third, they still have special interest fixes. They say they are willing to discuss TRI, and we want to talk about that. But making a cloture vote now does not permit that to happen right now. We think these provisions simply do not belong in a regulatory reform bill. The Governmental Affairs Committee and the Judiciary Committee have held no hearings on these issues. In effect, we are taking jurisdiction away from the committees of normal jurisdiction in these areas. These are special interest fixes, clear and simple. Fourth, they still have major changes to the Administrative Procedure Act, including adding new petitions. These are unnecessary. They will only add to litigation. Fifth, too many rules are covered, given the Nunn amendment that sweeps in any rule that has a significant impact on small businesses. These are just some of the major issues still outstanding. Now, we still want to work in good faith with Senator Hatch, Senator Dole, Senator Johnston, and others, but we do not want medicine that is worse than the disease itself. And we need sensible, balanced, regulatory reform. The bill as it is now would permit any interest group to tie up in legislation anything for an indefinite period of time that they did not want to see go through. That is not reg reform. That is regulatory favoritism for the favored few. I do not see that that does anything for the American people. Under the Glenn-Chafee bill----

Mr. GLENN

Mr. GLENN. Mr. President, we will be having the vote on the Glenn- Chafee substitute after our respective conferences today at noon. I have several wrap-up remarks I want to make before we do break at 12:30. The first thing I want to address is each day now we heard examples from proponents of Dole-Johnston about how silly some of these regulations are, and I agree with that. We have a lot that are very, very silly. I believe we have bureaucratic excess. We need regulatory reform, and there are plenty of [[Page S 10208]] anecdotal stories to go around about what the problems are. But I do not think we need to make our Government look any more stupid than it actually is, in some instances, and some of the things that have been stated as silly regulations have proven, upon investigation, to be not true. We do not need reform based on half truths and inaccuracies. Many of these stories have been shown to be not true or are, at least, serious exaggerations. Let me give an example. The other day I believe the Senator from Utah said that if a company spills 1 pint of antifreeze, the Federal Government requires it to notify the Coast Guard in Washington. That is simply not true. The main ingredient of antifreeze is ethylene glycol. It is covered by the Clean Air Act because of its high evaporation rate. According to EPA, you have to spill over 1,000 pounds of antifreeze to have to report an ethylene glycol spill; 1,000 pounds comes out to about 140- some gallons, 143 or 144 gallons, I believe. That would be almost three barrels of ethylene glycol that would have to be spilled. If you did spill that much, you are supposed to report it to the National Response Center, which is staffed by Coast Guard personnel as part of a multiagency support for that Center. It is not just reporting to the Coast Guard. But the facts of the case are, it is 1,000 pounds and you report it to this Center, which is staffed by Coast Guard personnel as part of a multiagency support force. There was also a claim made the other day that Federal rules prevent a farmer from diverting water from a river, even when the farm drains back into the same river, and this happened despite the involvement, I guess the story goes, even with the approval of the BLM, the Forest Service, and the State government. I never saw any substantiation for this story, but I do believe that while the water diversion problem may have existed during past administrations when they allowed wetlands regulations to be divided among agencies with no coordination, that is not the case now. The Clinton administration uses an interagency memorandum of understanding that provides for coordination among agencies, that provides for farmers and ranchers to interact with only one agency, and provides a single set of guidelines coming out from the Government. Once again, there is a new approach to this being taken by this administration that makes the anecdotal information at, very best, an exaggeration. Another example of distortion was the claim that EPA insists on regulating asbestos even when it says that the number of annual deaths from toothpick ingestion exceeds the number of deaths from asbestos exposure. This proves to be just flat wrong. According to EPA, a 1984 American Medical Association study showed that toothpick-related deaths average about 1 per year for the whole Nation out of our 260 million people, or close to that many. In 1988, EPA released a report that estimated that 4,280 people have died over the past 130 years due to asbestos in the buildings in which they live. That averages out to more than 30 deaths a year. According to EPA, this is actually a low estimate because many more asbestos-related deaths can be expected for building workers, such as custodians who are exposed at much higher levels. So here, again, we have the facts that show that the proponents are distorting the truth and relying on inaccurate anecdotal stories to create a false image of our Government. Sure, we want reform. Yes, Government needs to work better, but let us be reasonable. Let us use common sense. We do not need to make up stories about the Government working against the public interest and then end up throwing out the baby with the bath water, as my colleague from California, Senator Feinstein, put it yesterday. Let us not jeopardize public health and safety with scare stories of bureaucratic excess. Too much is at stake to justify such callous disregard for the public interest or the truth. Mr. President, regulatory reform is one of the most important issues we are going to take up this whole Congress. There is clearly a need to reform the regulatory process. We can all tell the horror stories of regulations gone awry, but before we rush to fix a problem with even worse medicine, let us take a hard look at what balanced, fair, and effective regulatory reform is all about. I believe that regulatory reform must not only alleviate unnecessary burdens on businesses and on States and on local governments and on individuals, but at the same time it must also ensure the Government's ability to protect the health, safety, and environment of the American people. That is my twofold test. That is a test of balance that is in the best interest of all the people of this country. Today, we have an opportunity to vote for true regulatory reform, reform that focuses on the biggest regulations, that makes agencies weigh the costs and benefits of their actions, that makes agencies take a hard look at the regulations on the books. At the same time, we have the opportunity to vote for reform that maintains the ability of agencies to do their jobs. That is commonsense reform, and the Glenn- Chafee substitute to S. 343 is pure common sense. Let me outline six major differences between the Glenn-Chafee substitute and the Dole-Johnston substitute. I hope those listening in their offices, those who may not have decided how they are going to vote yet after our noon break, will listen to these things and consider them very, very carefully, because these are major reasons why I feel you should support the Glenn-Chafee substitute. First, the Glenn-Chafee substitute focuses on truly major rules. We require truly significant rules--it will be between 100 and 200 rules per year--to go through rigorous cost-benefit analyses and risk assessment requirements. Even though we voted to amend the threshold of a major rule to $100 million in the Dole-Johnston substitute, we also voted to require any rule that has a significant impact on small businesses to go through the rigorous cost-benefit analyses and risk assessment requirements. Therefore, the Dole-Johnston substitute bill will still cover several hundred more rules than the Glenn-Chafee substitute and will tie up scarce agency resources with little added benefit. In fact, the estimate is this will run it up to somewhere between 500 and 800 regulations that would have to be reviewed per year. These are not cheap to do. Alice Rivlin estimated that when it was at a $50 million estimate, that we would require an additional $1.3 billion and 4,500 additional full-time employees. Now this is run up several times over that, and I would presume that $1.3 billion per year is going to be exceeded by the requirements that we find in the Dole-Johnston substitute now. That was not in the original bill, I realize, but it was voted on the floor, and as of now the small businesses going through the rigorous cost-benefit analyses and risk assessment requirements will run the cost and complexity of this way up. Our goal should not be to swamp the agencies so they are unable to carry out their missions. Whether that mission be to protect the health, safety, or environment or another important public function, our goals should be to help them do their jobs more effectively. We should require these rigorous cost-benefit analyses and risk assessments for the rules that have a significant impact on the economy, not for all the rules now covered by S. 343. That is why a vote for the Glenn-Chafee substitute is a vote for commonsense reform. Second, the Glenn-Chafee substitute requires cost-benefit analysis for all major rules, but does not make the agencies pass a least-cost, cost-benefit test. That is its decisional criteria, before issuing rules. Costs and benefits are often hard to quantify and cost-benefit analysis, while useful, is less than perfect. It is a developing science. The Dole-Johnston substitute requires agencies to pass a set of four rigid tests before they can issue a major rule. Most troubling of these criteria is the least-cost test. The agency must pick the cheapest alternative, even if for a few more dollars it could save hundreds of more lives or reduce pollution by a much greater amount. In other words, common sense goes out the door on this approach. It has to be [[Page S 10209]] least cost. Examples on the floor were given. If you had an additional cost of $2, and it would save an additional 200 lives, you could not put that into effect because you have to use least cost in the Dole- Johnston substitute as it is now constituted. Dole-Johnston does allow agencies to use other more costly alternatives, but only in the case of ``scientific uncertainties,'' or ``nonquantifiable benefits.'' So if the agency is certain about a benefit or can quantify how much extra benefit they gain by using something other than the least-cost alternative, they are prohibited from doing it. That just does not make any sense at all. Because these decisional criteria are tests that the agency must pass before promulgating a rule, the issue of whether the benefits really do justify the costs and whether the agency picked the least-cost alternative will certainly become matters for the lawyers to settle in court. Agencies should absolutely be required to use cost-benefit analysis. I think we all agree on that. But they should not be forced to pass a rigid least-cost, cost-benefit test to issue every major rule. If an agency does not think a rule's benefits justify its costs, but still is required by law to issue that rule, the rule should come back to us in Congress. That is where the responsibility lies, and that is what we provide in this legislation. It can come back to Congress, and that is where it should be, because after all, as much as 80 percent of agency rules are strictly required by laws we have passed in the Congress. I keep coming back to this point, but the plain truth is that if we really want regulatory reform, we should start fixing the laws we have passed, not load up the agencies and the American people with more bureaucratic procedures and more litigation. That is what Dole-Johnston does. Third, the Glenn-Chafee substitute provides for a review of current rules--in other words, laws, rules, regs, that are in effect now, maybe some have been in effect for many years--but with no automatic arbitrary sunset if agencies fail to review a rule. We provide for review of existing rules, much like the Dole-Johnston bill, but we do not have an automatic immediate sunset of rules if an agency fails to review those rules according to schedule. As the Senator from Louisiana points out, the agency may get up to a 2-year extension. True. However, it is still true that if the agency still does not complete its review by then, then at that point, the rule becomes immediately unenforceable; in other words, it is canceled. So it does still sunset after the extension. The Glenn-Chafee substitute, on the other hand, requires an agency that fails to review a rule according to schedule to issue a notice of proposed rulemaking to repeal the rule. And this process allows public comment on the rule and ensures that a rule does not sunset arbitrarily. The agency must then complete this rulemaking action within 2 years, and such action is judicially reviewable. Also, an annual process is established for Congress to amend agency review schedules in cases where an agency does not schedule review of rules people think are in need of review. This process will lead to the review and elimination of outmoded rules. Dole-Johnston, with its review petition process, will lead to delay, waste of money, and lawsuits. Let me reemphasize these points and set the record straight from yesterday. All the charges that our agency review of existing rules has no teeth are just not true. Under Glenn-Chafee, agencies must review existing rules and solicit public comment on the review and on the schedule. Agencies just cannot sit back and do nothing about reviewing existing rules under the Glenn-Chafee substitute, as some of my colleagues said yesterday. Glenn-Chafee requires agencies to review existing rules, to set a schedule for that review, to solicit input from the public, and to complete that review within a time certain. The Dole-Johnston substitute creates a petition process for interested parties to get a rule on the schedule for review. These petitions are all judicially reviewable and there is no limit on the number of petitions; there can be hundreds, there can be thousands. The agency has two options. If the agency grants the petition, it has to complete the review of that rule within 3 years, or the rule sunsets. If they deny the petition, they can get dragged to court. It seems to me that puts the agency between a rock and a hard place--3 years or the courthouse. It also seems to me that these petitions put interested parties, like the regulated businesses, not the agencies, in the driver's seat. The Glenn-Chafee substitute has an enforcement mechanism to make sure agencies review rules, contrary to what we heard yesterday. Under Glenn-Chafee, agencies must publish a schedule to review rules. That is a requirement that is judicially reviewable. Agencies cannot just sit on their hands and not review rules. If an agency, upon review, decides to amend or repeal a rule, it must do so within 2 years, and that is judicially reviewable. If an agency does not complete its review of a rule within the allotted time, it must publish a notice of proposed rulemaking to repeal the rule. And it must complete that agency action within 2 years. And that is judicially reviewable. That is a real hammer. We do not allow judicial review of what rules the agency decides to put on the list or of the deadlines for the review of those rules. But agencies must solicit and consider public input into this process. We just want to make sure the agencies spend their time and resources doing a review of rules, not defending their every action in court. We think, once again, that just makes common sense. The Senator from Louisiana stated that the schedule for review of rules is in the sole discretion of the agency. This is misleading. We use the phrase ``sole discretion'' to stop industries and others from litigating what and when rules should be reviewed. If interested parties have complaints about rules not getting on the schedule, there is a specific process allowing annual amendments and additions to any schedule through Congress. If any groups of constituents feel that an important rule is being ignored by agencies, this is the politically accountable way to handle that problem. We should not add to the litigation explosion, the litigation burden that would otherwise be created through Dole-Johnston. Fourth, the Glenn-Chafee substitute is not a lawyer's dream. We allow for judicial review of, one, the determination of a major rule and, two, whether a final rule is arbitrary and capricious in light of the whole rulemaking file. We do not allow separate challenges of the procedures of cost-benefit analysis or risk assessment. The Dole-Johnston bill has much more judicial review which can be interpreted to allow a review of procedural compliance with analyses and assessments. Senator John Kerry of Massachusetts, yesterday, had a list of 88 different points of judicial review. That was taken from a longer list, as I understand it, of 144 that one of the agencies said, as they interpret the bill as now proposed under Dole-Johnston--they could find 144 separate areas where there could be judicial review. We have it here, and if I have time, I will read it. But under S. 343, this is one where OSHA has about 15 different places that they--more than that; it is about 30 different places where OSHA says they can see there would be judicial review, as they view it, unnecessarily, where things could just be tied up in court. I will get to that if I have time for it a little bit later. I think it is important to remember that S. 343 has many more provisions for judicial review than what is found in section 625, the section the Senator from Louisiana kept coming back to yesterday. The Dole-Johnston substitute creates numerous new positions that are judicially reviewable. It changes the standards for review for the Administrative Procedure Act, and it makes fundamental changes in the use of consent decrees and burden of proof for industry compliance. All of these changes in Dole-Johnston, coupled with the judicial review language in section 625, mean one thing: more lawsuits, more money spent on lawyers, less money spent on the public's business of protecting the health, safety, and environment. Fifth, the Glenn-Chafee substitute does not create brand new petitions by private persons that will eat up agency resources and will let special interests, not the agency or Congress, guide priorities. The Dole-Johnston bill creates [[Page S 10210]] several new avenues for interested persons to petition agencies, including, one, issuance of amendment or repeal of a rule; two, amendment or repeal of an interpretive rule or general statement of policy or guidance; three, interpretation regarding meaning of a rule, interpretive rule, general statement of policy, or guidance; four, placing a rule on schedule for review; five, alternative methods of compliance; six, review of freestanding risk assessment. All petitions must be decided at a time certain, which ranges from 18 months to 180 days. Except for the petition for alternative method of compliance, all these petition decisions are judicially reviewable. That is a massive number of points of judicial reviewability. Again, we see that the real effect of Dole-Johnston will be to create special avenues for special interests and more ways for lawyers to tie up agencies in court. The Glenn-Chafee substitute has no special interest provisions. The Dole-Johnston bill, on the other hand, has very specific fixes for special interests. For example, it changes the Delaney clause and EPA's toxic release inventory. These provisions have no place in a Government-wide regulatory reform bill. Changes to these important laws--and I think some changes should be made--should be handled by the committees of jurisdiction in the context of full debate about the underlying laws. They should not be piggybacked on the larger process bill. This way of lacing the process reform legislation with special interest fixes is not reform. It involves special pleadings for the special money few. The American people will pay a heavy price in the end if we go that route. These are six important reasons why we should support the Glenn- Chafee substitute over the Dole-Johnston substitute. My colleague from Louisiana has tried to improve the underlying bill, S. 343. He has been out here on the floor every day, almost by himself, trying to make the case for his improvements. But I do not believe the improvements are enough. The bill is still too flawed to be supported. It endangered the public health and safety and the environment. It wastes Government resources. In enriches lawyers and bogs down the courts for the interests of a few. So I think we should enact the Glenn-Chafee substitute, which I feel is a commonsense reform. I want to also set the record straight about two additional issues in Glenn-Chafee that the proponents of Dole-Johnston misrepresented yesterday. First is the issue of exemptions. Glenn-Chafee has been criticized for not having enough exemptions. There are several issues involved here. There is one question about general exemptions. Both Dole-Johnston and Glenn-Chafee exempt several categories of rules from the regulatory reform legislation by exempting them from the definitions of rule and/or major rule. The question is, how do the two bills differ? Now, in total, I believe Dole-Johnston has more exemptions than Glenn-Chafee. I think some of these should actually be added to Glenn- Chafee. But Dole-Johnston is also missing some exemptions that Glenn- Chafee has. We need to get together on this. Dole-Johnston does not exempt actions relating to the removal of a product from commerce, for instance. It only exempts actions authorizing sales of a product. Now, this is wrong. If we allow expedited introduction of some product into the stores--that is, with no lengthy cost-benefit analysis and risk assessment--we should provide for expedited removal of dangerous products. That is only fair. Public health and safety demands no less. If we just think about the lignite situation of a few years ago, we can see why it is important that we be able to expeditiously remove dangerous products from the marketplace. Dole-Johnston also does not exempt Federal Election Commission rules and certain Federal Communication Commission rules relating to political campaigns. We believe the political nature of both these FEC and FCC rules recommend that they should not be treated like other rules. They may need review, but not under this legislation with review in the political environment of the White House and OMB. Dole-Johnston does have exemptions not in the Glenn-Chafee bill. These are exemptions that also were not in S. 291, our bipartisan Governmental Affairs Committee bill. They have been added since then. No. 1, Dole-Johnston exempts rules relating to customs, duties and revenue; No. 2, international trade law and agreements; No. 3 public debt; No. 4, relief from statutory prohibitions; No. 5, decisions of the Federal Energy Regulatory Commission; No. 6, matters involving financial responsibilities of securities brokers and dealers. Now, some of these exemptions do make a lot of sense. Customs duties and Treasury fiscal policy rules relating to the public debt, for example, should be exempted. These exemptions should be added to Glenn- Chafee. There are some areas we can agree and should keep working to improve the legislation. I think that is what we should do--keep talking about these and work out the things we all agree on are best between these two approaches. Now, the issue of exemptions also involves the question about special exemptions. The debate last week went beyond the general exemptions to focus on whether special exemptions are needed to protect public health and safety rules. As my colleagues know, last week exemptions were added to Dole-Johnston for mammography standards and rules to protect children from poisoning. At the same time, amendments for exemptions for meat inspection and safe drinking water rules were rejected. Again, this debate raised the issue of whether each bill needs special exemptions to protect important pending health and safety rules. The simple answer is that Glenn-Chafee needs no special exemptions, Dole-Johnston does. First, both bills allow agencies to use the current APA good-cause exemption. This allows an agency to exempt a rule from notice and comment rulemaking whenever necessary to protect the public interest. Once exempted from notice and comment procedures, the rule is exempt from the cost benefit and other requirements of the regulatory reform legislation. As far as Glenn-Chafee is concerned, no other special exemptions are needed. Second, proponents of Dole-Johnston argued last week that their bill has an extra exemption for health and safety rules, and Glenn-Chafee does not have this exemption. This is a smoke screen. Again, Glenn-Chafee does not need an extra special exemption. The APA good cause exemption is enough. Dole- Johnston needs an extra exemption because of its effective date and because of its onerous requirements. Proponents of Dole-Johnston argue that their bill solved people's concerns about USDA's proposed meat inspection rule and other pending rules, because it provided a 180-day--later extended to 1-year-- extension which is in now, and I emphasize the word ``extension'' for agencies to complete all required cost-benefit and related steps. Dole-Johnston supporters characterized this section as an emergency exemption and criticized Glenn-Chafee for not having a comparable section. This is just wrong. The real issue is not about emergencies. Again, the APA gives Glenn-Chafee an emergency exemption. The real issue involves pending rules. The USDA meat inspection rule, for example, is not an emergency rule. It has been under development for some time. It is, after all, a proposed revision of a set of inspection results that have been in effect, more or less, since 1906. It is not an emergency rule. Neither are EPA's cryptosporidium safe drinking water rules or FDA's mammography rules or the rules to protect children from poison. These health and safety rules are vulnerable under Dole-Johnston not because of the inadequacy of emergency exemption provisions, but because Dole-Johnston, No. 1, covers pending rules; No. 2, subjects those rules to onerous cost-benefit analysis and decisional criteria requirements. Dole-Johnston 1-year extension allows agencies to issue a rule, but then they still have to finish their cost before analysis in that year and then go back and revise the rule for the least cost test demands a different solution. Moreover, regardless of the cost-benefit test, Dole-Johnston's other requirements, like its APA revisions I discussed yesterday, still open up the rule to immediate challenge. These include new APA rulemaking publication requirements, a new APA substantial [[Page S 10211]] support standard, the petition processes, and all the related avenues for judicial review. Even with the Johnston amendment, only to cover rules for which a notice of proposed rulemaking was published after April 1, 1995, pending rules already in the rulemaking pipeline will emerge and immediately be subject to all of the Dole-Johnston requirements. This threat to rules in the pipeline will make agencies stop rulemaking, reassess the sufficiency of their rulemaking record, and even reanalyze their proposed rule then modify and republish their proposed rule in order to address issues that would be raised under the new standards of Dole-Johnston. Let me make this very clear. The issue is not whether an agency has or could exempt a rule from notice and comment rulemaking. The issue is whether a new rule coming out of the pipeline will satisfy the new requirements of the new law. The answer is that Dole-Johnston's extension does not solve this problem. Unlike Dole-Johnston, Glenn-Chafee will jeopardize pending rule makings. First, the Glenn-Chafee effective date is 10 days after an enactment for proposed rules. Glenn-Chafee will only cover new rules proposed at least 6 months after enactment of the legislation. This 6- month delay will allow agencies a reasonable amount of time to put into place the new tough procedures required by the law. Second, Glenn-Chafee requires an evaluation of costs and benefits. We also require a certification, whether the benefits justify the costs, and whether the rule will achieve its objectives in a more cost- effective manner than the alternatives. While this necessities a cost-benefit analysis, it is in no way as prescriptive as Dole-Johnston's least cost decisional criteria, let alone Dole-Johnston's minimal impact Regulatory Flexibility Act requirements. The bottom line is the proponents of Glenn-Chafee are not afraid of having agencies comply with our cost-benefit requirements. They are tough, but they are also fair and they are workable. The Dole-Johnston 1-year extension, on the other hand, is no solution. It is an extension, not an exemption. In fact, it simply introduced uncertainty. All interested parties will have to wait until the completion of the required cost before analysis and satisfaction of the least cost test to learn whether the rule will continue in effect or whether the agency will reenter rulemaking to revise the rule. This uncertainty and waste of resources serves no interest other than Government inefficiency and ineffectiveness. To summarize these exemption questions, No. 1, we may be able to agree on more general exemption to the definition of rule and major rule; No. 2, Glenn-Chafee does not need any special exemptions because of the APA's current good cause exemption. This protects emergency rules. Our future effective date also protects rules now in the pipeline. No. 3, the only bill that needs extra special exemptions is Dole-Johnston. Its immediate effective date will capture pending rules. Its onerous requirements will force many important rules back to the drawing board, wasting resources, causing delays and literally inviting litigation. Another matter that must be set straight involves some statements made yesterday regarding the risk assessment provisions in Glenn- Chafee. Some have stated that the Glenn-Chafee substitute is weak because it requires risk assessments for only particular agencies and programs rather than requiring them for all agencies. This is not weak. It is common sense. It makes sense to make agencies that issue rules relating to health, safety, and the environment comply with these requirements. It does not make sense to cover every agency. For example, what if the health care financing administration wants to change Medicare eligibility requirements. That is a rule related to health. Under Dole-Johnston they may have to do a risk assessment. That does not make sense. I do not think so. All we are trying to do in the Glenn-Chafee substitute is to use some common sense. It does not make sense to cover all agencies, because not all agencies should do risk assessments. Glenn-Chafee risk assessment requirements are less prescriptive and better science than the Dole-Johnston substitute. We need to be careful when legislating science. I do not classify myself as a scientist. Many scientists have warned against writing language that is too prescriptive. For example, the Dole-Johnston substitute states that agencies must base each risk assessment only on the ``best reasonably available scientific data in scientific understanding.'' I ask, who determines what data are best in that requirement? What is best? Scientists say there is often wide dispute within the scientific community about what data are best, and it is common practice for agencies to use several different data sets. This language will not allow that to happen anymore. They use several different data sets, and then they use their best judgment. In other words, they come back to something that may be startling, they use common sense--and that is what we would require. The Dole-Johnston substitute also says that when conflicts among data occur, agencies must discuss, ``all relevant information including the likelihood of alternative interpretations of the data and emphasizing postulates that represent the most reasonable inferences * * *'' Again, who makes this determination of most reasonable? Proponents of S. 343 are assuming there is only one right answer. But scientists tell us that risk assessment is a growing science with lots of uncertainty, and rarely, if ever, is there just one right answer. Let me also respond to what the Senator from Delaware said yesterday, that the Glenn-Chafee substitute goes against the National Academy of Sciences by preferring default assumptions to relevant data. That is just not right. It is wrong. I will read that again: It goes against the National Academy of Sciences by preferring the default assumption to relevant data. Default assumption means, basically, that we do not know, so we make a decision not knowing, not having as much data as we would like to have. That is a shorthand of what default assumptions means. But that is just not right. On the contrary, we explicitly state in the Glenn- Chafee bill that, ``each agency shall use default assumptions when relevant and adequate scientific data and understanding are lacking.'' That does not say we prefer such assumptions to relevant data. We say use them when relevant data are not available. Moreover, unlike the Dole-Johnston bill, we require agencies to issue guidance to ``provide procedures for the refinement and replacement of policy-based default assumptions.'' In other words, we even provide in there for going out and doing our level best to get some relevant information, not just to go along with default assumptions, as was stated yesterday. So, I disagree with the Senator on that point. But I also want to add that we should not be in the business of telling the agencies to throw out all their assumptions, no matter what. That also would not be good science. What we try to do in the Glenn-Chafee bill is to make our risk language less prescriptive. We should not freeze the science, as many scientists fear would happen if we legislate risk assessment with no room for incorporating new understanding in how these assessments should be done. That brings me to a more general point. The Senator from Louisiana brought up the issue several times yesterday regarding EPA's own reports about its ability to do good science. First, I do not think it is really fair to imply that EPA has not done a good job. That is not just my opinion. The National Academy of Sciences, in their 1994 report called Science and Judgment In Risk Assessment reaffirmed EPA's approach to risk assessment, stating--and this is from the National Academy of Sciences: ``EPA's approach to assessing risks is fundamentally sound, despite often-heard criticism.'' The report gave many recommendations for EPA to improve its policies and practices. As I understand it, EPA currently has programs underway to do just exactly that. In their March 1995 report, just a couple of months ago, called Setting Priorities, Getting Results: A New Direction For EPA, the National Academy of Public Administration, NAPA, concurred with the National Academy of Science findings. [[Page S 10212]] Second, I think it is important to point out what else the NAPA study found, the National Academy of Public Administration. They state: Congress should not attempt to define ``best science'' or ``best estimate'' in statutes. Congress should not attempt to legislate specific risk assessment techniques, or to adjust assumptions that underlie risk assessments. Such legislation would almost certainly inhibit innovation and improvement in risk assessments methods while constraining scientists from using their judgment in appropriate ways. That is a very definitive statement from NAPA. And their report goes on to say, further: Congress should draft any risk legislation so as to constrain the grounds on which risk analyses might be challenged in court. Courts should ensure that regulators follow reasonable procedures, but should not be put in the position of resolving science policy questions such as the definition of ``best science.'' That is what we try to do in the Glenn-Chafee substitute. We get rid of words like ``best data'' or ``the most reasonable inference.'' We limit judicial review, and that is a far better approach. Another issue: What is and is not exempted from risk assessment requirements? The Dole-Johnston substitute exempts from the requirements actions to introduce a product into commerce. Should we not also exempt actions to remove a product from commerce? To put a product on the market, no risk assessment needs to be done. But to get a dangerous substance off the market, an agency has to do a full-blown risk assessment? That does not seem right. I mentioned a few moments ago, what if we had the thalidomide scare going on today? That would be held up from being taken off the market, I guess. And that would not make any sense at all. Finally, what about peer review? The Glenn-Chafee bill is actually tougher than the Dole-Johnston bill. We require peer review analysis of both cost-benefit analysis and risk assessment. We believe both should be reviewed. Both have lots of assumptions. Both should be scrubbed to make sure that agencies are making good decisions based on good information. The Dole-Johnston bill also exempts peer review from the Federal Advisory Committee Act, FACA. Last year, during the health care debate, my colleagues who support the Dole-Johnston substitute made a very big thing about making sure that such panels were done in sunshine and complied with FACA. Now they seem to have changed their minds, exempting all peer reviews from FACA. I do not think that is the way we should be conducting business. Glenn-Chafee does not exempt FACA, and that is the way we should do business. Mr. President, some of the comments that were made last year about FACA, when we were considering health reform--my colleague, Senator Mack, for instance, said: Secrecy in Government is not the American way. Secrecy in Government has led to all sorts of abuses and denial of freedom in other lands. We must keep our system of government open and accountable to the citizens of our country for public inspection and scrutiny. FACA requires that these meetings should be meetings in public, published notice of meetings in the Federal Register. Let the public know of the agenda for those meetings. The act requires boards to permit persons to obtain transcripts, appear and testify or file statements, make a record, keep minutes, working papers, et cetera, available. Keep detailed minutes, permit citizens to purchase manuscripts and transcripts. Keep adequate financial records. And the act also requires there should be a 2-year time period for boards and commissions. Senator Craig, Senator Grassley, Senator Lott, I believe my colleague Senator Specter, Senator McConnell, and Senator Dole all spoke on behalf of keeping FACA and supported FACA and the importance of FACA. Senator Dole in particular said: And, plain and simple, the American public did not trust the Clinton plan. They did not trust the secrecy in which it was written. They did not trust the principle that Government knows best. There is no reason why these boards should be granted the power to meet in secrecy. Indeed, there is every reason why they must meet in public. On and on, we have several pages of those here. I will not read all of them into the Record. But, Mr. President, I ask my colleagues to take a very hard look at the regulatory reform substitutes before them. I urge them to support the Glenn-Chafee bill. The Glenn-Chafee bill is a very tough reform bill. It also provides a balanced--repeat, a balanced--and a fair approach to reform. It will relieve regulatory burdens on businesses and individuals. I repeat that. It will relieve regulatory burdens on businesses and individuals. At the same time, it will also protect the health and safety and the environment of the American people. This is responsible legislation. I urge your consideration and support. Mr. President, in indicating the litigation that can occur with this legislation, OSHA has looked at this, and they asked a question, they postulated something here. The title of this is: ``S. 343, Endless Rounds of Litigation While Workers Wait For Protection.'' They say: Imagine: You are a metal finisher who works with a toxin that causes acute pneumonitis, pulmonary edema, kidney disease, and lung cancer. You are not alone. 500,000 other men and women also work with this compound. Right now, OSHA can protect you from exposure to this dangerous hazard by proving that: workers are exposed to a significant risk, the proposed standard would substantially reduce that risk, and the standard would be technologically and economically feasible. Under S. 343, a protective rule to limit your exposure to this compound could be invalidated because of the endless opportunities for judicial review. For example, a petition could: Claim that OSHA failed to consider substitute risks. (See 631(8); Sec. 632(a); Sec. 633(f)(3)) Claim that OSHA failed to distinguish between risk assessment and risk management. (Sec. 633(a)(2)) Claim that OSHA failed to use only the best reasonably available scientific data and scientific understanding. (Sec. 633(c)(1)) Claim that OSHA failed to select data based on reasoned analysis of the quality and relevance of the data. (Sec. 633(c)(2)) Claim that OSHA failed to consider whether the data was published in peer reviewed literature. (Sec. 633(c)(3)) Claim that OSHA failed to discuss alternative interpretations of that data that emphasize postulates that represent the most reasonable inferences from the supporting data. (Sec. 633(c)(5)(A)) Claim that OSHA used a policy judgement when relevant scientific data was available. (Sec. 633(d)(1)) Claim that OSHA failed to explain adequately the extent to which policy judgements were validated, or conflict with, empirical data. (Sec. 633(d)(2)(A)) Claim that OSHA failed to describe adequately reasonable alternative policy judgements and the sensitivity of the conclusions of the risk assessments to the alternatives. (Sec. 633(d)(2)(C)) Claim that OSHA inappropriately combined or compounded multiple policy judgements. (Sec. 633(d)(2)(3)) Claim that OSHA failed to express adequately the range and distribution of risks and the corresponding exposure scenarios, and failed to identify adequately the expected risk to the general population and to more highly exposed or sensitive populations. (Sec. 633(f)(1)(C)) Claim that OSHA failed to describe adequately the significant substitution risks of the rule. (Sec. 633(f)(3)) Claim that OSHA's peer review panel was not balanced and independent. (Sec. 633(g)) Claim that OSHA's response to peer review comments were inadequate. (Sec. 633(D)(3)) Claim that OSHA failed to provide adequate opportunity for public participation and comment. (Sec. 633(D)(3)) Claim that OSHA did not properly determine that the benefits of the rule justify the costs. (Sec. 624(b)(1)) Claim that OSHA failed to identify all of the significant adverse effects of the rule. (Sec. 621) Claim that OSHA failed to give regulated persons adequate flexibility to respond to changes in general economic conditions. (Sec. 621(6)(C)) Claim that OSHA did not properly determine the least-cost alternative of the reasonable alternatives. (Sec. 624(b)(3)(A)) And more claims, and more claims, and more claims. Thankfully, OSHA addressed this dangerous compound in its Cadmium standard. If S. 343 had been in place, however, this protective standard could have been delayed for years, leading to many work-related cases of cancer and kidney disease that could otherwise have been avoided. So, Mr. President, this is just one little example of--what is that, 25 or 30, I guess, examples after just a first-cut look at S. 343 that OSHA indicates they feel would provide grounds for litigation. Mr. President, I wished to make a reasonably complete statement, which I think I have done here this morning. We have combined several previous things that were brought up over the last couple of days as well as refuting some of the scare stories that have been applied. We still have basically six different areas in which we disagree. [[Page S 10213]] It is on major rules and how we deal with those; on the cost-benefit analysis versus the least-cost approach. We provide for review of current rules with no automatic sunset. We disagree with Dole-Johnston that provides a sunset after an extension period. Our bill is not a lawyer's dream. It does not provide nearly unlimited judicial review of everything from beginning to end. And our substitute does not create brand new petitions by private sources, by private persons or groups, that will just eat up agency resources and let special interests, not the agency or Congress, guide our priorities. And we do not have special interest provisions. We do not try to deal with things in this bill that deal with processes. We do not try to solve things like the Delaney clause on which separate legislation is being prepared by a different committee; toxics release inventory and things such as that. So I believe we have a better bill here, and I hope that when the vote occurs this afternoon after our noon break we will have enough votes to pass this. I know it is a squeaker. I know that we may lack the votes to do this. But I hope that after people look at the two bills side by side, they will realize we take the more reasoned approach to this and that this really is a superior bill. Mr. President, I yield the floor.

Mr. GLENN. Will the Senator yield for a question?

Mr. GLENN. Mr. President, I ask unanimous consent----

Mr. GLENN. Mr. President, I ask unanimous consent that Senator Roth be permitted to speak until the minority leader reaches the floor.

Mr. GLENN

Mr. GLENN. Mr. President, last week I took the floor to reply to some of the top 10 silly regulations that the Senator from Utah had brought up last week. We found, upon investigation, that of some of those silly regulations last week there were, probably a good half of them, I do not know the exact number, but probably half of them I gave responses to that showed that the so-called silly regulations were not regulations at all and were, in some cases, municipal or State regulations that were being somehow tossed over into the Federal bailiwick of responsibility. And I gave real details on that, and it caused considerable concern on the other side of the aisle, I understand. I do not know the regulations that were cited this morning, how they originated or what their backgrounds are, but I hope we have better substantiation for the ones given this morning than we did for the ones last week. If we wish to take up our time here going through those, we can do that again like the ones that were put in last week. But we found in many of the cases mentioned they were not Federal regulations at all. There was no requirement in Federal law for some of the things that Federal regulators were being credited with doing. So what we are trying to do is bring some common sense to this regulatory process. I have said many times during this debate, regulatory reform is probably the most important issue we will take up this year, outside of the actual appropriations bills, because it affects every person in this Chamber today, whether on the floor, in the gallery, every person outside, every man, woman, child, every business, every organization across the whole United States of America. So regulatory reform is one of the most important items. The American people want regulatory reform. I want regulatory reform. I believe the vast majority of Members of Congress do. I do not know of anybody who does not want regulatory reform. When we go back to our States, the horror stories we hear every time are about some of the rules and regulations that are too heavyhanded and too intrusive, so we need to correct those things. The question is, how will we correct them? If we are drowning in red tape, how do we correct it? I have made no effort to retain the status quo, in spite of what was said this morning. Quite the opposite. I do not want to retain the status quo. That is the reason why we worked 2\1/2\ years on the Governmental Affairs Committee to try to get responsible regulatory reform legislation ready. We have [[Page S 10090]] heard a lot of talk about specific instances of regulatory excess. And, as I have pointed out, many of these stories are just factually not true. But even for those that may be true, let us make sure that the medicine we prescribe is not worse than the illness we want to cure. Individual instances of excess do not justify bogging down our Government with equally excessive bureaucratic procedures and litigation, and that is what I fear the proponents of S. 343 are giving us. Instead of making Government more cumbersome, more bureaucratic, and more expensive, we should be working to make the regulatory process more effective, more efficient, and less burdensome. Regardless of our debates about process, about how Federal agencies should make decisions, we must not forget what the process is all about. The regulatory process is about protecting the public interest. It is about implementing the laws that we in Congress pass. It is about providing for the common good, protecting public health and safety, preserving the environment, and making this country a land of opportunity for all and, at the same time, correcting regulatory excesses to make sure that those just do not happen. That is a balance. It is a balance that we have to seek and it is a balance that I think we have addressed in S. 1001, which was laid down last Friday afternoon. That is why, as we debate how to reform the regulatory process, we must ask ourselves two essential questions--basically what I stated a moment ago. First, does the bill before us provide for reasonable and appropriate changes to regulatory procedures to eliminate unnecessary burdens on businesses and individuals and organizations and everyone all over this country? And, second, does the bill maintain our ability to protect the environment and the health and the safety of our people? In other words, does the legislation strike an appropriate balance? That is what we have to find in this debate--is the balance. If we find the proper balance, there will be broad support for this effort. However, if we produce a bill that relieves regulatory burdens but threatens protections for the American people in health and in safety or the environment, the legislation should be opposed. Today we will focus our debate on two bills, the Dole-Johnston substitute and the Glenn-Chafee substitute to that substitute. Both will transform the regulatory process, but I am convinced that the Dole-Johnston substitute goes too far. I believe that only the Glenn- Chafee substitute will reform the regulatory process in a way that meets my tests just outlined. The Glenn-Chafee bill will relieve burdens and maintain an efficient and effective process to protect public health and safety and the environment. Before I discuss the differences between the two bills, I want to review the debate of last week, because I believe that this past week's debate alone, just standing by itself, makes the case for the Glenn- Chafee substitute. Proponents of the Dole-Johnston substitute have repeatedly stated that their bill is a good bill, that their bill went through a long process of improvement before coming to the floor, and that it is ready for enactment. But I believe our activities on the Senate floor last week proved otherwise. When confronted with the challenge that their bill would threaten important health and safety rules--impending rules, now, not just something thought about for the future, but important pending health and safety rules such as those for food safety, drinking water, mammograms--the proponents of Dole-Johnston first denied that their bill would compromise those regulations. Then they tried to add general and symbolic exemptions just in case, like the sense-of-the- Senate resolution that was supposed to be a substitute for the Boxer amendment protecting mammogram rules. But when all the votes were done, we see that they voted against meat and poultry inspection rules, putting the American people at risk due to the dangers of E. coli and other foodborne diseases; and that they voted against drinking water safety rules. But we see that they voted for mammogram rules and for child poisoning protection rules. I do not think my colleagues value food and drinking water safety less than women's or children's health. What I really think is that the proponents of the Dole-Johnston bill have yet to come to terms with the fact that their bill fails my test. It may reduce regulatory burdens-- it will do that--but it will also jeopardize public health and safety and the environment. In other words, it does not hit the balance that I spoke about earlier. They say their bill will not harm the public but they are not really sure. I am sure that the Glenn-Chafee substitute will protect the public and reduce regulatory burdens, and I say we should support that Glenn-Chafee substitute. When it came time last week to discuss the effect of their bill on the implementation of current laws, again we saw confusion and uncertainty. Throughout the negotiations, prior to coming to the floor, and during the first hours of debate, the proponents again and again denied that their bill contained a supermandate--that is, a prevision that would have economic cost-benefit analyses override other statutory requirements if there was any conflict between the two. Those other statutory requirements are things like clean air, clean water, and worker safety. Even so, they refused to add language to clearly state that assertion, that in a case of a conflict between the cost-benefit test and the statutory requirement, the underlying statute would prevail. In other words, there would not be a supermandate that said: If there is a conflict, that the earlier law would be knocked out. Their provision would have provided that, if there was a conflict between the rule that came up and a previous law passed by the Congress, signed by the President, and in effect all over this country, the underlying statute could be knocked out by a regulation. Finally, on the floor an amendment appears from the proponents to do just that, to say that if there is a conflict between the cost-benefit test and the statutory requirement, that the underlying statute would prevail. Again, I have to ask why was the Dole-Johnston bill brought to the floor in the form it was? The proponents insisted it was in fine shape and provided just the right amount of reform, but when pressed on the floor, their arguments went both ways and the weaknesses of the bill, their bill, were revealed. When it came time to discuss what their bill covers, again we saw confusion and inconsistency. Their bill provided the proper threshold, they said--a major rule should be a rule with an annual effect of $50 million or more. On Monday, the first day of debate, that threshold was, however, lowered even further with the addition of significant, what are called significant rules, under the Regulatory Flexibility Act. This will add between 500 and 800 rules to the agency cost-benefit process. This was an incredible expansion of coverage. It could quadruple the number of rules that agencies have to put through detailed analysis. The very next day an amendment was passed, which I supported, to raise the threshold from the $50 million figure to $100 million. But the problem is that the amendments are inconsistent. It makes no sense to say that we have restricted the scope of the bill to a more reasonable threshold--$100 million overall economic impact on the country--when the threshold at the same time had just been lowered to include hundreds and hundreds and hundreds of more rules. I simply do not understand how my colleagues can think that agencies in a time of falling budgets and full-time employees--FTE's--will be able to effectively perform the duties that we give them. Yes, you have to remember that we in Congress passed the laws that require agency action. I add that some 80 percent of the regulations written are required in the laws that we sent over to the agencies to have the regulations written. Now those agencies will have to spend scarce resources on analyzing rules that do not have a significant impact on the Nation as a whole. This is simply a mistake. They cannot do something with nothing. We are cutting their budgets with fewer full-time employees and at same time loading them up with new policies that must be done, new analyses--that I favor but not the expansion that was done on the [[Page S 10091]] floor--in the numbers of overall reviews that have to be made. We need to stick with the higher threshold, and that is it. That is manageable. Agencies need to be more sensitive to the burdens that Government places on small business. I also add that is what the Regulatory Flexibility Act is all about. Thinking that businesses somehow are being overregulated is not something new. We passed the Regulatory Flexibility Act I believe back in 1972 or 1973. It was supposed to address some of this problem. Let me repeat that agencies need to be more sensitive to the burdens that Government places on small business. That is what the Regulatory Flexibility Act is all about. But requiring agencies to go through lengthy analyses for nearly every rule that comes under that act is just too much. We will end up with a Government that spends more money and more time, and has less and less to show for it. If the proponents of Dole-Johnston are trying to make it much harder to issue regulations, regulations that we in Congress often require-- require as much as 80 percent of the time--then this is the way to do it. If they want to make it harder to issue rules that protect the health and safety of the American people, this is the way to do it. Let me just observe that two major supporters of the Dole-Johnston substitute, Senator Johnston and Senator Roth, did not support the expansion of the bill to cover regulatory flexibility rules. So I hope we can still address this problem in a reasonable way and maybe work out something on that before we come to a final vote on this legislation. Finally, let me mention the issue of sunshine. On Thursday, my amendment to the Dole-Johnston substitute to provide for sunshine in the OMB regulatory review process was accepted. I was very happy that amendment was accepted. It was not just passed by a vote. It was accepted unanimously. That was very good because it shows support for an important component of reasonable regulatory reform. This sunshine provision came from the bipartisan Governmental Affairs Committee bill, the bill sponsored by my good friend from Delaware, Senator Roth. The provision is also contained in the Glenn-Chafee bill. The problem is that for the last 2 months we have repeatedly urged those Senators involved in crafting the Dole-Johnston substitute to incorporate that sunshine provision. Despite our requests we were turned down at every turn. The latest rejection came last Wednesday, July 12, when we finally got a response to our June 28 list of 9 major and 23 minor issues with the Dole-Johnston bill. We were told then that we would have an answer. We do not have a full answer yet. But we did get a response to our June 28 list of 9 major and 23 minor issues with the Dole-Johnston bill. But then the next day, on Thursday, July 13, when confronted with the sunshine provision as an actual amendment, suddenly it was fine. Suddenly it was acceptable. I have a lot of respect for the intelligence and good faith and legislative abilities of the proponents of the Dole-Johnston substitute. I must admit I do not understand the thinking that goes into developing a legislative proposal of such great complexity and far reaching impact in a closed room dismissing compromise proposals out of hand and insisting that the bill should be passed, and then on the floor accepting some of the very proposals that were earlier rejected all the while maintaining that no changes are needed. I have not changed the stand I took, along with Senator Roth and our other colleagues in the Governmental Affairs Committee 3 months ago. I believe we had a tough but workable regulatory reform bill in S. 291. That bill provides the basis for the Glenn-Chafee substitute that I think should be supported now. So my position has not changed. Of course, there is always room for improvement in any bill. We modified Glenn-Chafee to reflect improvements that we have seen over the last several weeks. But on the basic provisions of the bill, my position is clear. It has been consistent. With the proponents of the Dole-Johnston substitute I think the story is different. I believe the truth is they are finally realizing that their bill is flawed, weighted with ill-thought-through provisions that will frustrate the very reform that they say they want to accomplish. I believe my colleague from Louisiana, Senator Johnston, has accomplished significant changes in S. 343 in the month or so that he has been working with the majority leader and the Senator from Utah, Senator Hatch. I also believe Senator Johnston deserves a great deal of credit for his commitment to regulatory reform, and for his tireless efforts to improve S. 343. He has been involved in regulatory reform for a number of years, and that has had pieces of legislation passed here on the Senate floor before. But if nothing else, his constant presence on the floor over the last week, and the detailed personal knowledge he has of the bill, shows his commitment and expertise. I certainly commend him for his effort. I believe the product, though, is still flawed, too unwieldy, too unworkable to provide the reform that we all believe is necessary and needed for the regulatory process. I think last week's debate highlighted a number of these differences. To bring the debate to the present, I would like to describe the major differences that I see between the Dole-Johnston bill, as modified this past Friday, and the Glenn-Chafee substitute. The Dole-Johnston substitute is based on the Judiciary Committee's bill that emerged from a divisive committee proceeding that was cut short before the bill could be fully debated. The Glenn-Chafee substitute is based on the Governmental Affairs Committee's unanimous bipartisan legislation. S. 291 which was sponsored by Senator Roth, the chairman of our committee, and fully debated in committee. Nothing was cut short there. It was fully debated before it was voted out with eight Republican votes and seven Democrat votes. It was a unanimous committee vote. An examination of the two committee reports shows the differences between those two bills. The Governmental Affairs report had a unanimous bipartisan discussion of a tough but workable approach to regulatory reform. The Judiciary report is divided and filled with divergent views, and they have never been reconciled yet. I believe that these two reports tell us why we are in the posture we are in today. Instead of choosing the path of bipartisan dialog and cooperation, the proponents of S. 343 chose to push ahead with what I view as an extreme bill. All the effort of Senator Johnston to moderate that bill--and again he has accomplished much--has not altered the fundamental nature of that bill. As I have said previously during this debate, the result is a bill tailored to special interests, and is a lawyer's dream. It does not, in my view, meet the goals of at the same time protecting health and safety or of having a more effective and efficient Government. Yes, we want agencies to have more thoughtful and less burdensome rules, but we also want agencies to be effective. The American public does not want the Federal Government to be more inefficient or to have important public protections delayed or bogged down in red tape, delay and courtroom argument. That is why Senator Chafee, myself and several others offered an alternative bill just before the last recess, and it was laid down here before the Senate last Friday as a substitute. Our substitute bill, S. 1001, is based on that same Governmental Affairs Committee bill, S. 291, that was reported out with full bipartisan support. It provides for tough but fair reform. It will require agencies to do cost-benefit analyses and risk assessments, but it will not tie up all their resources unnecessarily. It does not provide for special interest fixes, and it does not create a lawyer's dream. It provides for reasonable, fair, and tough reform. Since introducing the bill, we have incorporated additional changes to reflect agreed upon improvements arrived at during negotiations and debate on the underlying bill. This is a very complex matter. We do not necessarily claim we have the very last word on every detail, and we look forward to suggestions for improvement. We do think our approach is much more workable than the Dole-Johnston substitute and that our substitute provides the better approach for reform. [[Page S 10092]] Now, that is a little bit on the background, and that brings us to today. After a week of debate and amendments as well as the negotiations that preceded floor action, the Dole-Johnston substitute has been modified in a number of ways. There are, however, major issues that still distinguish the two bills and recommend support for the Glenn-Chafee substitute. In my mind, there are five major areas of difference remaining. First is the issue of how agencies should use regulatory analysis. We believe that agencies should be required to perform risk assessments and cost- benefit analyses for all major rules. These analyses should inform agency decisionmaking --inform agency decisionmaking. They should not unilaterally control those decisions and impose least-cost solutions to every problem. Let us put some common sense into this process. We should not unilaterally control those decisions and impose least-cost solutions to every problem. Second is the question of look back. We believe that agencies should review existing rules, those that have been in effect, some for a long time, but their reviews should not be dictated by special interests or lead to wasteful litigation. Third is a matter of judicial review. The courts should be used to ensure that final agency rules are based on adequate analysis. Regulatory reform should not be a lawyer's dream with unending ways for special interests to bog down agencies in litigation. Fourth is the concern about special interests. Regulatory reform should provide a new, across-the-board process for Federal agency decisionmaking. It should not provide program fixes for special interests. Fifth is the implementation of the new reforms. In a nutshell, this is the issue of effective date. More broadly, however, it involves the question of whether we want to implement reforms in a way that improves Government decisions or whether we want to impose new requirements in order to frustrate decisions, create more delay, waste resources, introduce uncertainty and open up new avenues for litigation. I believe that implementation of the Glenn-Chafee substitute will improve decisionmaking and reduce burdens on the American public. The Dole- Johnston substitute, on the other hand, has the potential to create problems, cost money, and harm the public interest. If we could resolve these five sets of issues, we could establish for the first time a governmentwide comprehensive regulatory reform process. This process would produce better, less burdensome and fewer regulations. It would also provide the protections for the public interest that the American people demand of their Government and that they have a right to expect from their Government. S. 343 does not follow these principles. Instead, it does special favors for a special few. In so doing, it creates a process that will delay important decisions, waste taxpayer dollars, enrich lawyers and lobbyists, undermine protections for health, safety, and the environment and further erode public confidence in government. Now, let me talk about each one of these five major issue areas. The first issue is the question of the use of regulatory analysis. We believe that agencies should perform risk assessment and cost-benefit analyses for all major rules. As I have already said, the threshold for a major rule should be a $100 million economic impact. If it includes more rules, as the Dole-Johnston substitute now does, it will fail its own cost-benefit test, and we will just waste Government resources instead of reforming Government. Once undertaken, the cost-benefit analyses and risk assessments should be used to inform agency decisionmaking. We all agree that regulatory decisions will be improved if Federal agencies routinely use consistent economic and scientific analysis to test their proposals. The question is, should that analysis control agency decisions, as under the Dole-Johnston approach, by requiring that the agency choose the least-cost solution to every problem--the least-cost solution to every problem. We had examples last week in the Chamber. If something costs $2 more but saves 200 lives, would it be worth that excess cost? Yes, it would. Right now, you could not do that, as this is worded, as I understand it. You have to have a least-cost solution. I simply do not believe we always want the agencies to take the cheapest path to implement our laws. What if that alternative that costs $2 extra saves 200 lives? Do we say pick the cheapest; do not look at the benefits of the alternatives before you? That is what S. 343 does. What if the cheapest alternative imposes more costs on State and local governments? Or what if it imposes more costs on small business, or a specific region of our country, a certain section of our Nation? Do we want to stop agencies from considering such distributional effects? I think we have to let agencies use common sense. We keep saying that is what regulatory reform is all about. If so, then agencies should be able to choose the most cost-effective approach--the cost-effective approach we use in the Glenn-Chafee bill, looking not just at cost but also at the benefits. Remember, if for some reason we in Congress do not agree with the agency's solution, the congressional review provisions of both bills, S. 343 and S. 1001, allow us to rescind that rule by bringing it back to Congress for further action. That is something that has not been done in the past. We have that provision in both of these bills. So should we not create a process that allows for good decisions and a way to catch the bad ones rather than to create a process that ensures there probably will be bad decisions in the first place? The Glenn-Chafee substitute requires the analysis of costs and benefits. It requires agencies to certify whether benefits justify the costs and to explain if those benefits do not justify the costs. In other words, Glenn-Chafee uses cost-benefit analysis to improve decisions, but it does not give important decisions over to a mechanical economic analysis. Too much is at stake with Government decisions to simply rely on a least-cost approach to protecting the public interest. Let me point out here that the Dole-Johnston substitute also creates confusion with its Regulatory Flexibility Act decisional criteria. Section 604 is amended by adding a requirement that agencies not issue a rule unless it minimizes the economic impact ``to the maximum extent possible'' on small entities; that is, small businesses, State and local governments, and other small organizations. The least-cost-alternative test in this minimal impact test will probably conflict quite often. Least cost overall may often involve more than the lowest cost possible for small entities. As brought to the floor, the Dole-Johnston substitute simply did not address this inherent contradiction. As now amended, there is something of a fix. Agencies are to explain whenever the tests are in conflict but can go forward. My personal opinion is this is still not enough. To create a standard for governmentwide rulemaking that says, ``Choose the alternative that is the absolute cheapest for small business and other small entities,'' is to me to turn away from common sense, away from traditional notions of administrative law and reasoned decisionmaking and to create a lengthy analytic process that, again, is geared to the cheapest solution, not the most cost-effective solution. The Regulatory Flexibility Act was designed to ensure that agencies consider more flexible and less burdensome alternatives for small entities. The Dole-Johnston substitute would turn that important purpose around and let it govern decisionmaking. I am all for looking out for the interest of small business and State and local governments, but American public interest is broader than that. Protecting public health and safety and the environment, for example, requires a broad view of what works best for the Nation as a whole, not just for some. That brings us back, once again, to the issue of balance that we are looking for. The second major issue is the question of lookback. We believe that agencies should review existing rules, but their reviews should not be dictated by special interests or lead to wasteful litigation. Regulatory reform is not just about improving new rules. It must also look back and help existing [[Page S 10093]] rules, existing laws that currently govern so many activities in our country. So we all agree that agencies should use cost-benefit analysis and risk assessment to look back and review existing regulations to eliminate outdated, duplicative and unnecessary rules and to reform and streamline others. This process should be fair and open with plenty of opportunity for public comment, so that those who are interested in particular rules can make their concerns known to the agency. But this review should not be dictated by special interests, and I believe this is what would happen should the Dole-Johnston substitute become law. It would create a number of petition processes. That is an innocuous sounding phrase, ``petition processes.'' It would create a number of petition processes that has the potential of gridlocking agencies and putting special interests and the courts, not the agencies and the executive branch, in charge of the review. The Dole-Johnston substitute uses a petition process to put rules on a schedule for review, and if the agency grants the petition, it has to review the rule in 3 years, which is a very short timeframe for such matters. If it fails to review the rule in that time, the rule automatically sunsets, goes out of existence. It just automatically sunsets. This process, it seems to me, puts the petitioner in the driver's seat, not the agency or the Congress who passed the law in the first place. It also creates a process more prone to just killing regulation than creating a thoughtful, balanced review of regulations. In addition to the review petitions, the Dole-Johnston substitute has several other petitions for ``any interested party" to challenge an agency on any rule, not just major rules. This is another example of the lawyer's-dream approach taken under this bill. People could petition for the issuance, amendment, or repeal of any rule. They could petition for the amendment or repeal of an interpretive rule or general statement of policy or guidance, and they could petition for the interpretation of the meaning of a rule, interpretive rule, general statement of policy or guidance. That is a mighty big list of things that could be petitioned under S. 343. Just to add to the confusion, the bill also has a separate section, section 629, for petitions for alternative compliance. Any person subject to a major rule can petition an agency to modify or waive the specific requirements of a major rule and to allow the person to demonstrate compliance through alternative means not permitted by the rule. In addition, it adds yet another petition process in section 634 so that interested persons may petition an agency to conduct a scientific review of a risk assessment. Each agency decision on every one of these petitions, except that petition for alternative compliance, is judicially reviewable. What a dream for lawyers. At any step along the way, in other words, they can bring a suit for any one of the list of things I mentioned. All of these petitions and reviews add up to one of the worst parts of this bill. It is a formula for true gridlock. Agencies will have to spend enormous resources responding to each other and every petition. Then they can be dragged to court if they turn down a petition. So I do not feel this comes close to being real regulatory reform. This is regulatory and judicial gridlock, and this is the way to keep the agencies from doing their jobs and to keep lawyers happy and, I would add, extremely prosperous. This bill would make all the rhetoric about tort reform a big joke, except in this case judicial gridlock means the health and safety of the American people would be jeopardized. Mr. President, I think sometimes people think that a regulation is put out by the agencies with a little bit of effort and very few people involved. They do not understand why the delay and why they are so complex. We gave an example on the floor the other day. Just one regulation pursuant to the Clean Water Act that dealt with some of the metal fabricating areas, just one regulation covers, now that it is in place and it has been finalized, covers 123 feet of shelf space. That is a pile of documents from the well, right here in the Senate, to the ceiling, which is 42\1/2\ feet, we found out from the Capitol Architect. That is three piles of documents from the well to the ceiling. Three piles of documents to implement one regulation, and under the Clean Water Act there are hundreds of regulations like that. So we are not talking about something that is just a little thing-- well, we can just throw that over at the agencies and they can handle that OK, they can grind these out OK. That was one regulation written to a small part of what was addressed in the Clean Water Act. So these are not small things. When we talk about upping the cost for each regulation that would have to be written by some $500,000 to $800,000, I think is what the estimate was made last week on the floor, and we had testimony before the committee at one time that each regulation averages out, or can average out, around $700,000 per regulation to get it implemented. We begin to see that this is no small matter. Now, these petitions that we were addressing here--each agency decision on every one of these petitions, except that petition for alternative compliance I mentioned, is judicially reviewable. That is an absolute dream for the lawyers. All of these petitions and reviews add up to one of the worst parts of the bill--that is, it is a formula for true gridlock. Agencies are going to have to spend enormous resources responding to each petition. They can be dragged to court if they turn down a petition-- just a petition. It does not come close to being real regulatory reform. It is regulatory and judicial gridlock. It opens up to those who would thwart a particular piece of regulation that might be in the public good. They can thwart it and stop it dead in its tracks by keeping it in court. So this is a way to keep agencies from doing their jobs and to keep lawyers happy and prosperous. So all this tort reform becomes a big joke if this type of thing goes into effect. Now, while the Dole-Johnston substitute creates a recipe for gridlock, the Glenn-Chafee approach provides a workable process of review. Every 5 years, agencies will have to produce a 10-year schedule of rules to be reviewed. Opportunities for public comment will identify rules that the agency may not think is pressing. While there is no petition process or judicial review, our process allows Congress to add rules to the agency schedule. In other words, if we think their priority review of existing rules and regulations is not what it should be, Congress can add rules to that agency's schedule. Now, I must admit that I am not 100 percent happy with using the annual appropriations process, as we are proposing, to amend these schedules. I would be happy to consider alternatives. But the critical point is that we provide for amendments to the review schedules without bogging down agencies into the lengthy petition and judicial proceedings created under Dole-Johnston. I think that is the key point. We want review. We want a review that is sensitive to the complaints of people covered by the rules, but we do not want gridlock. We want Government to keep working so that we can have more effective and more efficient protections of public health and safety and the environment. The third major issue that distinguishes the Dole-Johnston substitute from the Glenn-Chafee substitute involves judicial review. The courts should be used to ensure that final agency rules are based on adequate analysis. Regulatory reform should not be a lawyer's dream, with unending ways for special interests to bog down agencies in litigation. We firmly believe in the courts' role in determining whether a rule is arbitrary or capricious. The Glenn-Chafee substitute authorizes judicial review of determinations of two things--whether a rule is major and therefore subject to the requirements of the legislation. Also, it allows review of the whole rulemaking record, which would include any cost-benefit and risk assessment documents. In other words, it allows review of the final rules at the final stage before that can be taken to court to see whether all of the requirements of cost-benefit and risk assessment have been provided. We should not, however, provide unnecessary, new avenues for technical or procedural challenges that [[Page S 10094]] can be used solely as impediments by affected parties to stop a rule. Courts should not, for example, be asked to review the sufficiency of an agency's preliminary cost-benefit analysis, or the use of particular units of measurement for costs and benefits. While courts have a vital role to play, they should not become the arbiters of the adequacy of highly technical cost-benefit analysis or risk assessment, independent of the rule itself. Thus, Glenn-Chafee clearly states that ``if an analysis or assessment has been performed, the court shall not review to determine whether the analysis or assessment conformed to the particular requirements of this chapter, section 623(D).'' I believe the way the Dole-Johnston substitute is currently drafted that lawyers and the courts will get into the details of a risk assessment or cost-benefit analysis. I think that is a mistake. From what I understand, there has been a great deal of discussion about this issue, and I believe many of us want the same result. The question is how to get there from here. Leaving the language as ambiguous as it is now is unacceptable. That is just an invitation to litigation. With all of the attention to the question of to what extent might the courts get into the details of cost-benefit analysis and risk assessment, we have not discussed enough the amendments that the Dole- Johnston substitute makes to the Administrative Procedure Act. I am not a lawyer, but I know that with every statute we pass, the courts slowly, over the years, develop a body of case law that interprets each statute. The APA is no exception. It was enacted in 1946 and, to a great extent, it has been given more meaning by the courts in the intervening 50 years than Congress was able to squeeze into its relatively brief sections in 1946. While judicial interpretation of administrative procedures continues, I am not aware of any major criticisms of the APA. Certainly, the Administrative Conference has not proposed any major overhaul. But that is what will happen should the Dole-Johnston substitute be enacted into law. Its amendments to the APA, innocuous though they may seem to some, will usher in a whole new generation of lawsuits that will use the new legislative language to attack the case law that has developed around the 1946 statutory language. Adding more petition processes, requiring new details in rulemaking notices, adding the phrase ``substantial support in the Record'' to the traditional formulation of arbitrary and capricious, these will invariably be used by lawyers to go after rules not on substantive grounds but on these procedural grounds. This is not reform. This will recreate a litigation explosion that will give deeper gridlock than we could ever imagine. Let me just add that this is one of the reasons that I believe such important pending rules as the USDA meat inspection rules--the rules that are needed to protect the American people from foodborne illnesses, such as E. coli--should be exempted from Dole-Johnston. Independent of its cost-benefit analysis, all the supporting evidence, procedural steps, rulemaking notices, and more will all be open to challenge in the courts under these APA amendments. Again, this is not reform. This is a lawyer's dream and a potential nightmare for the American people. I am sure my colleagues, Senator Levin and Senator Biden, both excellent lawyers, will go into this issue. But it seems to me that these unneeded amendments to the APA alone are reason enough to oppose the Dole-Johnston substitute. The fourth major difference between the two bills is the concern about special interest. Regulatory reform should provide a new across- the-board process for Federal agency decisionmaking. It should not provide program fixes for special interests. From the beginning, S. 343 has included a number of provisions that are not about Government-wide regulatory reform. Quite the contrary, they are about giving specific relief to specific interests or stalling particular programs. Frankly, I do not think these provisions have any place in a regulatory reform bill that should be meant to establish a fair process, fair and equal to all. Unlike S. 343, and unlike its revised alternative, the Dole-Johnston substitute, our bill, the Glenn-Chafee substitute, like its predecessor, Senator Roth's S. 291, has no such special fixes. Let me say that I sympathize with those who would like to fix particular problems. I know of examples where regulations go too far and where agencies go too far. But as testimony before our committee showed, 80 percent of the rules are required by Congress. It is not up to the agencies. We require them in the legislation that we send over. So it is not just the regulatory process that needs fixing. We in Congress are also responsible for a lot of these problems. In other words, if we have a problem, we ought to look in the mirror a good part of the time. Let us focus on making the regulatory process better as a whole and not affix for special interest. Let me give some examples. This is not just idle talk. The original S. 343 tried to rewrite the Delaney clause. Now, I happen to think the Delaney clause needs some modification, but they went too far in rewriting the Delaney clause. They also shut down the EPA toxic release inventory, providing enforcement relief for companies and so on. Now, while I agree that some of these legitimate problems deserve our attention, this is not the place. A regulatory reform bill should address regulatory issues. It should not become a Christmas tree for lobbyists to hang solutions to whatever problems they may have. Over the last week, the Senate's resolution of amendments on several of these special fixes shows that they are divisive, unrelated to the basic process reforms proposed in the legislation, and simply an attempt to avoid going through the appropriate legislative channels. For example, the section that would delay an increased cost for environmental cleanups was stricken on the grounds that it was a specific program fix unrelated to the larger process reforms, and that Superfund reform is currently under consideration by the committee of jurisdiction. When it came time to consider a similar amendment to strike a section that would restrict EPA's toxic release inventory, the same arguments were rejected. Outside the scope of general regulatory reform--no matter. More properly considered by the committee of jurisdiction--no matter. Special interests want the TRI gutted--you got it. This is not how we should be reforming the regulatory process. We say we are creating a new, fair, and reasonable process. What we are really showing the American people is that if they are a big enough company, they use enough high-priced lawyers, you can fill the halls of power and get relief. It is unfortunately clear how a majority of the body weigh the community's right to know about the release of toxics into the environment against companies who apparently do not want companies around the plant to know what they are drinking and breathing. The irony for me is that the TRI is perhaps the most notable example of a rule that is relatively inexpensive and really not that burdensome. It is a so-called risk communication rule. Unlike a command and control rule that would prohibit the use of such toxic materials, TRI merely requires industry to inform the communities of the release of such chemicals. Now, do you know who cares about the TRI as much as anyone? It is local fire departments. People probably would not have thought of that, but they are the men and women who have to fight the local chemical plant fires and clean up chemical spills, and they want to know what they will face. They do not want a Bhopal, the tragedy that took place in India, to take place in their city or town. But no matter to the proponents of S. 343. Powerful business interests and their lawyers have sent the word around they do not want to have to comply with TRI. So it will be reworked, it will be revised, it will be restricted. I know what that means. I do not think the American public comes out on top in that particular consideration. These and other fixes are found in the Dole-Johnston substitute. They are not found in the Glenn-Chafee substitute. We stuck with the process of how the Government should go about regulatory reform. This is reason enough to support our bill. [[Page S 10095]] The fifth and final major difference between our two bills involves the implementation of the new reforms. In simple terms, this is a question of the statute's effective date. Last week, several questions arose about the effect of reform legislation on pending rules, on expected rules, and on avenues for increased litigation. I have already talked at some length about these in this statement. I believe if we are serious about changing the way Federal agencies make regulatory decisions, if we are serious about improving those decisions, about reducing burdens and improving commonsense solutions to pressing issues involving public health and safety and the environment, then we must have a sensible approach to implement the reforms. The Dole-Johnston substitute, as it now stands, reaches back and covers health and safety rules whose notice of proposed rulemaking occurred as early as April of this year. While that is supposed to let some rules off the hook, it also means that should that bill become law, rules in the pipeline between April and the date of enactment could be challenged in court and would have to go back to square one to comply with the many requirements of the new law. Now, I want to improve rulemaking. But I see no value in wasting resources already expended to promulgate a rule. If the rule is so bad, a court can overturn it under current law. There is no need to reach back and waste Government resources. The Dole-Johnston immediate effective date for all other rules simply adds to this bad picture. Challenges will flood the courts the very next day to go after rules developed under current law--current until the day Dole-Johnston S. 343 is enacted. During our debate last week, proponents of the S. 343 substitute argued that because the Glenn-Chafee substitute does not have a broad exemption for health and safety rules, it is more restrictive than Dole-Johnston in its effect on pending rules. This argument is based on a misunderstanding of our bill. We apply our reform legislation to rules that are proposed 6 months after enactment. This delay gives agencies a reasonable amount of time to develop new procedures, bring new regulatory proposals up to the new standards before they are published as proposed rules. Again, Dole- Johnston applies all requirements immediately. Once promulgated and coming under Glenn-Chafee, rules will face analytic requirements that are tough, but they are also fair and they are not unreasonable. Remember, we do not have the least-cost alternative. We do not have the least-cost alternative test or the minimal impact reg flex test of Dole-Johnston. We are not afraid to have important rules go through our process. They will face a tough test. But if they are needed, the rules will survive. What they will not face are the challenges that rules under Dole- Johnston would face such as the new APA challenges that would be created for rulemaking procedures and substantial evidence requirements. The basic question is whether we want government to work better for the American people or whether we want to impose new requirements in order to frustrate decisions, create more delay, waste resources, introduce uncertainty, and open up new avenues for litigation. I believe that implementation of the Glenn-Chafee substitutes will improve decisionmaking and will reduce burdens on the American public. The Dole-Johnston substitute, on the other hand, will create problems, cost money--we do not know how much yet--and harm the public interest. In conclusion, I want to state again, I want regulatory reform. We have worked on this in the Governmental Affairs Committee for the last several years. It is not something that came up just recently. I believe that S. 343 does not provide the balanced regulatory reform we should have. I believe the Glenn-Chafee S. 1001, the substitute that we are proposing today, does that job. In the coming hours of debate, we will focus more closely on these two alternatives. I welcome suggestions for improvement to our bill. I am sure there are details that can be revised. I am also sure our bill provides a better approach. I urge our colleagues to support our substitute. Mr. President, I reiterate, once again, these areas: The Glenn-Chafee substitute focuses on truly major rules. Glenn-Chafee substitute requires cost-benefit analysis for all major rules. It does not take the least-cost approach that the Dole-Johnston bill does. The Glenn-Chafee substitute provides for review of current rule but with no automatic sunset. If we run out to a time period and the agency has not taken adequate action in the prescribed time period, then they must issue a notice of proposed rulemaking to repeal the rule. In other words, either approve it or put the forces in motion to repeal it, but allowing public comments on the rule. Also, the Glenn-Chafee substitute is not a lawyer's dream. We allow for judicial review of the determination of a major rule and whether the final rule is arbitrary and capricious in light of the whole rulemaking file. The Dole-Johnston bill provides procedures, petition, multitudinous places where suits can be filed to stop even the best of legislation. Also, the Glenn-Chafee substitute does not create brand-new petitions by private persons that will eat up agency resources and let special interests--not the agency or Congress--guide priorities. Lastly, Glenn-Chafee substitute has no special interest provision. We did not put a section in here that deals with things like the Delaney clause or toxic release inventory or things like that, that have a special interest to a special few. For all the reasons given this morning, Mr. President, I urge support of the Glenn-Chafee substitute which was laid down Friday evening before we left. I yield the floor. Mr. JOHNSTON addressed the Chair.

Mr. GLENN. But if the time came for the rule to expire? Let us say we are reviewing the rule, the existing rule, and the time came and went past for the review of that rule. It could sunset at that point unless you asked for this extension. Then, if you ask for the extension, let us say it was granted; let us say it was extended. Then, when you run out of that time period, it would in fact sunset.

Mr. GLENN. Mr. President, we have talked about other costs, we have talked about complexities, we have talked about the costs of business, we have talked about costs of everything except costs to the Federal Government of this legislation. It seems to me that in any consideration of this legislation, that has to be taken into account. I do not know exactly what it will cost the taxpayers for the Dole- Johnston bill to be carried out by the agencies as it stands right now. But I would like to read a letter to the chairman of the Judiciary Committee, Senator Hatch, from the Executive Office of the President, Office of Management and Budget on July 7. It applies to the original Dole bill. There have been some changes made since this letter was written, but I think the changes that were made make it even more expensive. But I would like to read this letter in its entirety, because I think it is extremely important that everyone understand exactly what it is we are getting into. Alice Rivlin, Director of the Office of Management and Budget, writes as follows: Dear Mr. Chairman: On April 26, 1995, the Senate Judiciary Committee reported S. 343, the ``Comprehensive Regulatory Reform Act of 1995,'' for floor consideration. The Congressional Budget Office estimated that the bill, if enacted, would impose additional discretionary costs of at least $180 million annually. We have worked over the last several weeks with both the program and the budget offices of agencies with major regulatory programs, in order to arrive at our own estimate of the potential costs of the bill as reported by the Judiciary Committee. CBO indicated in its analysis that few of the agencies had sufficient time to determine the additional costs that the bill would impose. Further, it assumed that the sole feature of S. 343 that would make issuing new regulations more costly was the lowering of the threshold for cost-benefit analysis to $50 million. Our request to the agencies, however, asked them to consider not only the lowering of the threshold but also the many additional analytic steps, such as risk assessment and peer review, that S. 343 would require agencies to undertake in situations where they are not now carried out. In addition, our analysis, unlike CBO's, contemplated the additional costs that S. 343 would impose, both by significantly expanding existing litigation opportunities and by substantially expanding the coverage and the requirements of the Administrative Procedures Act. Our analysis, unlike CBO's, also included the costs involved in implementing the many new petition processes that S. 343 would create for reviewing existing regulations. Based on our more extensive analysis, we have arrived at a cost figure that is significantly larger than CBO's. Our preliminary estimate is that S. 343, as reported by the Judiciary Committee, could impose discretionary costs of approximately $1.3 billion annually and consume the time of approximately 4,500 full-time employees. Although there have been some modifications made to the bill since it was reported by the Judiciary Committee, we believe this information remains useful in light of CBO's estimate. I hope this information is useful to you as S. 343 approaches the floor. Sincerely, Alice Rivlin, Director. I ask unanimous consent that a copy of this letter be printed in the Record. [[Page S 10130]]

Mr. GLENN. Mr. President, let me further comment on this. In the bill as it originally came out, CBO estimated $180 million. OMB analyzes what would occur here with the additional petition processes and so on, and after canvassing some of the agencies, as Director Rivlin says, as much information as they could get, estimates that it would cost about $1.3 billion and with 4,500 full-time employees. Let me point something out. Their analysis was based on the $50 million base, and since that time, the Nunn amendment, which was added to this, adds a substantial number of regulations that would have to be reviewed. In the original legislation that was addressed by Director Rivlin, major rules would probably have been somewhere between 200 and 500, something like that. We do not know exactly, of course. Now, under Glenn-Chafee, the major rules are estimated to be between 100 and 200. With the Nunn amendment addition, the estimate is to go up to between 500 and 800 rules that would have to be reviewed. The Rivlin estimate from CBO of $1.3 billion in annual costs and the time of approximately 4,500 full-time employees to comply with S. 343 was made before the Nunn amendment on small business was passed. So that at least doubles the number of rules that would have to go back for reconsideration, with all the analysis that goes along with that. I know that just the number of rules cannot be equated directly to a specific budget figure. But I think it is fair to say that the cost of the bill will be similar to the cost of the Dole bill, as it emerged from the Judiciary Committee, which is $1.3 billion. You have to add onto that the estimate of approximately doubling the number of rules and regulations that would have to be reviewed again, if you add the additional requirement of review put forward by the Nunn amendment. I am not saying it would double that $1.3 billion, but it certainly it is going to add a considerable amount onto it. I think it would probably add at least half to it. I do not base that on anything except to say that if you double the number of rules, we should add another $400 or $500 million onto that $1.3 billion. It seems that would be logical. The point I am making is that we do not get this for free. We want regulatory reform. But at the same time, a vote for the Dole-Johnston bill is a vote to spend a minimum of $1.3 billion, by OMB estimates, in additional Government paperwork. What reform. That is not much of a reform, it seems to me. So I think we have to think about this. We have not provided anywhere in this legislation for that $1.3 billion annually that would be required, nor for the 4,500 full-time employees. We are in the process, as a result of the President's national performance review, of reducing the civil service rolls in this country, and doing pretty well with that reduction, also. They are trying to cut down 272,000 civil service positions over a 4-year period. The last count I had, as of about 30 days ago, we had actually reduced around 110,000 and are on schedule to probably accomplish that full 272,900 reduction by the end of this year. That comes at a time when, at least in these departments, we are going to have some 4,500 additional FTE's just to carry out the analysis that would be required by the Dole-Johnston bill, at a cost of about $1.3 billion, and that was before the Nunn amendment took the threshold way down, and probably, as near as we can estimate, doubled the number of reviews that would have to be made. So I think, as we consider this, we want to consider whether we are also going to up the appropriation, whether that would be required, whether we are going to up the number of FTE's to do the job that would be required on this legislation. I yield the floor. Mr. ROTH addressed the Chair.

Mr. GLENN. Here is what we do on Glenn-Chafee. We say at the end of that time period the agency has to either approve the rule or start the rulemaking process to repeal it. And that lets all public comment come in, which is a much fairer process than just running out a couple of extensions and guillotining the whole thing.

Mr. GLENN. We have both leaders who wish to speak.

Mr. GLENN. Will the Senator yield?

Mr. GLENN. Certainly, I always want to negotiate on these things and see what we can come out with.

Mr. GLENN. No, I disagree with that.

Mr. GLENN. Yes. As I understand it, what the Senator was proposing was that there are some negotiations going on in this regard, and we would be willing to proceed with further negotiations with regard to cost effective as opposed to least cost; is that correct?

Mr. GLENN. I am almost finished. Another minute or two and I will be glad to yield. No. 3, agencies must prove that a rule significantly reduces risk. The FAA tells us, however, that some of their safety rules, while quite important and quite effective, may not pass the ``significant'' test. No. 4, if agencies determine that the benefits of a rule do not justify its costs, that rule should come back to Congress. And that is a key element of this; that rule should come back to Congress if the agency determines that the benefits do not justify its costs. Agencies should not be the ones to decide whether to issue a rule based on a cost-benefit test. That rule should come back to Congress to decide whether a rule should go forward or not, and that is provided. Congressional veto, as it is called, makes more sense than decisional criteria. It does not hand over Congress' responsibilities to the agencies. Mr. President, I yield the floor. Mr. ROTH addressed the Chair.

Mr. GLENN. Mr. President, this was an interesting discussion. It shows the complexities of this legislation and why we should not be rushed on the floor of the Senate putting it into effect. We should be considering all these things and all the legal ramifications of it in every respect. I come back, though, that if the Agency passes something that is considered to be not OK, or tries to put something into effect, that anyone can petition the Agency and say, ``We think this should go back to Congress,'' or notify their Congressman, notify their Senator, we can call it back. I do not see yet why that is not--that is where the responsibility lies, is right here. We are the ones who passed the original legislation. What we have done is, for the first time, put into play a specific arrangement. We are detailing it in legislation. We are inviting people to watch what goes on in the agencies and say we will bring it back. The Senator from Louisiana is absolutely correct. We always have the right in Congress to do something like this if we want to pass separate legislation. But that takes a lot of time. It is time consuming, it could go on for a whole session of Congress. It could go on for another year. What we did is provide, in both pieces of legislation, time restraints by which Congress has to complete its action. In other words, any authorizing committee can call back a rule or regulation for reconsideration before it goes into effect. I really do not see how there could be a better protection than that. I do not know what else there is that would be needed. Let me read some things into the Record that apply to this judicial review: Judicial Review Provisions in Glenn-Chafee and Dole-Johnston Versions of S. 343--A Comparative Approach 1. rulemaking file requirements and review The Dole-Johnston bill amends the A.P.A. to add elaborate rulemaking file requirements to all notice-and-comment rulemaking; these sections contain their own confusing judicial review provision [553(m), p. 12] and would encourage lawsuits over the adequacy of the file and whether items were placed in the file as quickly as possible. Additionally, the Dole-Johnston bill would change the standards of review for rules issued under notice-and-comment; it would add 5 U.S.C. Sec. 706(a)(2)(F) to require that the factual basis for a rule have ``substantial support'' in the rulemaking file. See discussion below. The Glenn-Chafee bill does not include these troublesome provisions. 2. judicial review of scheduling review/lookback Section 623(e) (p. 30) of the Dole-Johnston bill provides for judicial review of agency non-compliance with the process for scheduling of review of existing rules. However, the section does not clearly limit judicial review to only the reasonableness of the schedule. The scope of review is broad--i.e., ``agency compliance or noncompliance with the requirements of this section'' and review exists ``notwithstanding section 625.'' Review is limited to the D.C. Circuit Court of Appeals. Review of final agency action must be filed within 60 days of publication of the final rule. However, the section does not preclude interlocutory review. Section 625(c) of the Glenn-Chafee bill (p. 18) provides for judicial review of the agency regulatory review but precludes review of agency decisions whether to place a rule on the schedule and the deadlines for completion. 3. Review of decision to ``sunset'' rule Section 623(g)(3) (p. 33-34) of the Dole-Johnston bill grants interested parties the right to petition the D.C. Circuit Count of Appeals to extend the period for review of a rule up to two years and to grant equitable relief to prevent termination where, inter alia, termination of the rule would not be in the public interest. The last sentence of section 623(h) provides that the decision of an agency to not modify a major rule ``shall constitute final agency action for the purposes of judicial review.'' Section 623(j)(2) similarly states that failure to promulgate an amended major rule or to make decisions by the date required shall be considered final agency action. Under the Glenn-Chafee bill, rules would not automatically ``sunset.'' Instead, the agency would be required to publish a notice of rulemaking to terminate a rule. Sec. 625(e)(1)(C)(iv). 4. jurisdiction and judicial review Clarity of limitation on judicial review.--Section 625(a) and (b) of the Dole-Johnston bill (p. 38) affirmatively grant jurisdiction to review ``any claims of noncompliance with this subchapter and subchapter III.'' While compliance is subject to judicial review ``only in accordance with this section,'' subsection 625(d) arguably permits broad judicial review. By contrast, the Glenn-Chafee bill clearly states there is no judicial review except as provided therein. Sec. 623(a), p. 13. Section 623 of the Glenn-Chafee bill is very clear concerning what is reviewable and what is not. Procedural errors.--Section 625 of the Dole-Johnston bill is unclear as to whether procedural errors are reviewable. It states that ``failure to comply'' may be considered by the court solely to determine ``whether the final agency action is arbitrary and capricious or an abuse of discretion (or unsupported by substantial evidence where that standard is otherwise required by law.'' 625(d), p. 39 The use of the words ``failure to comply'' in at least three places in section 625 suggests procedural errors are reviewable. The limitation of review to the ``arbitrary and capricious'' or ``abuse of discretion'' test may not be sufficient to keep courts from reviewing alleged agency non- compliance just as they otherwise would under the A.P.A. That was the view of one court in a case where Congress limited review of agency procedural error to those which rendered the agency action arbitrary and capricious. That court had difficulty understanding the limitation as violation of procedure is often regarded as rendering the action arbitrary and capricious. Small Refiner Lead Phase-Down Task Force v. U.S. E.P.A., 705 F.2d, 521 (D.C. Cir. 1983). See also, Motor Vehicle Mfrs. Assn. of U.S. v. E.P.A., 768 F. 2d 385 (D.C. Cir. 1985) (statutory test of action in excess of statutory authority same standard as arbitrary and capricious). The Glenn-Chafee bill, by contrast, makes it clear that courts are not to review the underlying steps and procedures leading up to the cost-benefit analysis and risk assessment. Section 623(d) expressly states that ``. . . the court shall not review to determine whether the analysis or assessment conformed to the particular requirements of this chapter.'' Sec. 623(d), p. 14. The Glenn-Chafee bill would permit the court to consider the actual documents produced by the agency to evaluate cost-benefit analysis and risk assessment in determining the reasonableness of the agency action but not to permit review of the underlying steps to development of the risk assessment or cost-benefit analysis. Judicial ``second-guessing'' of agency judgment and scientific expertise The Dole-Johnston bill creates great risk that courts will second guess agency judgments and scientific determinations which go into the cost-benefit analysis, risk assessment, and application of the prescriptive decisional criteria. The Dole-Johnston bill contains many prescriptive requirements which tell agencies what they must consider and what they cannot. However, many of these factors are very difficult in application. Yet consideration of factors Congress has decided are not to be considered has been cited as a basis for reversal under arbitrary and capricious review. [[Page S 10104]] Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 91 S. Ct. 814, 823, 28 L. Ed. 2d 136 (1971). S. 343 turns administrative law on its head if it takes away agency's ability to make policy choices and to have those upheld so long as they are reasonable and consistent with the statute being applied. See cases cited in Small Refiner Lead Phase-Down Task Force, 705 F. 2d at 520. If Congress takes away an agency's discretion to make policy choices, then special interests challenging a rule will argue that an abuse of discretion standard permits the court to second-guess the agency's decision as to what is a ``policy judgment'' and what is ``scientific understanding.'' Courts are not situated to ``second-guess'' the prescriptive requirements of the Dole-Johnston bill. Courts are not well situated to review the underlying basis of cost- benefit analyses and risk assessments against the prescriptive standards of the bill. ``. . . the crowded states of judicial dockets offers a highly practical reason why judges will not, and probably should not, devote the considerable time and effort needed to review a several-thousand-page agency record, informed by a thorough understanding of the substance of risk-related regulatory problems, in order to see whether or not that agency determination was arbitrary.'' Justice Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (Cambridge, Mass.: Harvard University Press 1973), pp. 58-59 (describing why courts are not institutionally suited to resolve risk issues). Prejudicial error [Note: Neither bill contains a prejudicial error provision in this section. However, Senator Johnston says concerns with the decisional criteria and judicial review provisions are solved by the prejudicial error test in 5 U.S.C. 706. This is not an adequate protection.] The problems with judicial review of the many prescriptive requirements of the Dole-Johnston bill are also not cured by the ``prejudicial error'' test in 5 U.S.C. Sec. 706. That test, which is unchanged from the current APA, has been described as requiring remand if the court ``cannot be sure that under the correct procedures the Agency would have reached the same conclusion . . .'' Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978). That case invalidated a pollution emission limitation rule for failure to provide adequate notice for comment on agency data even though petitioner could not show that recomputation of the data would have made the process so costly as to invalidate the limitation as an abuse of discretion. Clogging the Courts.--The language of section 625 will encourage years of litigation before even the question of what is reviewable is resolved. This bill gives regulated industry many hooks to delay rulemaking and then to challenge the final result. If those steps are subject to judicial review, there will be every incentive to stop regulation through complex and lengthy judicial review proceeding. When this is combined with the increased time and cost of rulemaking under this bill, the result may be gridlock. This frustration of law is not a desirable goal. Judicial review of whether the agency chose the ``least cost alternative,'' given the great differences in underlying data, will generate challenges.--The Dole-Johnston bill takes away agency discretion and mandates that all costs and benefits be turned into one number and that the agency select the ``least cost alternative'' of those available under 624 (b) or (c). Yet some say that cost-benefit analyses may be off by a magnitude of hundreds. This makes it difficult for agencies to achieve any certainty concerning application of cost-benefit analyses. If agencies must constantly be looking over their shoulder at the possibility of judicial review, it is clear this will provide many opportunities for challenges to rules by the regulated industry. By contrast, the Glenn-Chafee bill provides a range of discretion to the agency decision-maker in section 622(f) and is much more clear that the decisional criteria do not alter statutory criteria for rulemaking. 5. interlocutory review of determination of ``major rule'' The Dole-Johnston bill permits interlocutory appeal of an agency decision that a rule is not a major rule or is not subject to risk assessment requirements. Sec. 625(e) p. 39. The Glenn-Chafee bill requires ``a clear and convincing showing that the determination is erroneous in light of the information available to the agency at the time the agency made the determination. Sec. 623(c). It does not authorize interlocutory review. 6. dole-johnston amends the APA standards of judicial review for all agency rules--glenn-chafee does not Factual basis for rules--5 U.S.C. Sec. 706(a)(2)(F) The Dole--Johnston bill amends 5 U.S.C. 706(a)(2) by adding (F) which requires courts to set aside agency action, findings and conclusions found to be ``without substantial support in the rulemaking file, viewed as a whole, for the asserted or necessary factual basis, as distinguished from the policy or legal basis, of a rule adopted in a proceeding subject to section 553. . .'' The Dole-Johnston version of S. 343 also requires the final notice of rulemaking to explain how the factual conclusions upon which the rule is based are substantially supported in the rulemaking file. 5 U.S.C. Sec. 553(g)(4), p. 8). The ``rulemaking file'' must identify factual and methodological material that pertains directly to the rulemaking and was considered by the agency or submitted to or prepared by or for the agency in connection with the rulemaking. Sec. 553(j)(3)(d), p. 10. Position: The standards for judicial review in the APA should not be changed. Agencies should be able to rely on their knowledge and expertise in informal notice-and-comment rulemaking. Review should be on an arbitrary and capricious standard, not require that the factual basis have ``substantial support'' on a limited record. This new standard will create much litigation in an established area of the law. This standard may encourage judicial intrusion into agency's scientific determinations. In Corrosion Pipe Fittings v. E.P.A., 947 F.2d 1201, 1213-1214 (5th Cir. 1991), the court held that the ``substantial evidence'' test used in the Toxic Substances Control Act for notice-and-comment rulemaking was a more rigorous standard than the ``arbitrary and capricious'' standard applied now to informal rulemaking and showed that Congress wanted the courts to scrutinize the agency's actions more closely. The Court then proceeded to apply close scrutiny to the agency's cost-benefit calculations and invalidated the asbestos rule that had taken ten years to develop. 947 F. 2d at 1223-1230. New section 706(a)(2)(F) requires the agency to amass a record for potential litigation in every case. It calls into question the principle that an agency can utilize its knowledge and expertise. It gives well-healed parties the opportunity to skew the results on judicial review by salting the rulemaking file with comments and materials which support their position. Even in cases where the agency position has an adequate factual basis in scientific literature, this standard might require the agency to list all sources in the file or not be able to later rely on them if a challenge is raised on judicial review. 7. multiple opportunities for review Dole Johnston contains other provisions permitting judicial review. Glenn-Chafee contains other provisions making it clear that judicial review is not available. See, Sec. 636(d), p. 40, no judicial review of risk assessment guidelines' development, issuance, or publication; Sec. 646 (p. 48), no judicial review of executive oversight authority; Sec. 6(f), p. 70, no judicial review of study of comparative risk; Sec. 6(f), p. 78, no judicial review of regulatory accounting. 8. glenn-chafee reduces uncertainty and increases discretion and thereby reduces opportunities for successful challenges to agency rules An example where Glenn-Chafee gets rid of a problem is the effective date provision, Sec. 8, p. 70. By making it clear that the section does not apply to pending rules and by providing a reasonable grace period, this eliminates a troublesome problem for pending rules. 9. regulatory flexibility Glenn-Chafee eliminates some of the problems with regulatory flexibility under the Dole-Johnston bill. Section 611 (p. 48) avoids inconsistent statutes of limitation where that for the underlying rule is less than 1 year. It provides that court may stay the rule if a failure is not corrected within 90 days but does not automatically terminate a rule if not corrected in that period. Its judicial review standard is more limited, and it does not contain the decisional criteria of the Dole-Johnston bill. Mr. President, I think this indicates to all who might be paying attention to this debate in the Chamber today how very, very complex and how far-reaching some of these decisions are. It is not something we can rush through. I know it has been stated we want to move forward as rapidly as possible, and I agree with that. But I also want to make sure that while we are setting up a new regulatory review process, we at the same time make every protection for whatever existing law deserves that kind of protection, and before we make changes that we make very certain we do it in a way which protects the health and benefit and safety of the American people. Mr. President, I would go further in talking a little bit more about the cost-benefit analysis and the decisional criteria. Glenn-Chafee has no ``decisional criteria requiring agencies to pass cost-benefit tests before issuing a rule.'' Our response to some of the charges under that are, No. 1: Both the Glenn-Chafee and Dole-Johnston substitutes require agencies to do the same type of cost-benefit analysis. We believe in making agencies do such analyses to better understand what the costs and benefits are of a rule. There is no problem with that with either bill. The differences, though, between our substitutes is how they use cost-benefit analysis. Glenn-Chafee uses cost-benefit analysis as a tool and not just as a final decisional criteria. There is no language in the Glenn-Chafee substitute that states, ``An agency shall not promulgate a rule,'' unless it passes a [[Page S 10105]] cost-benefit test. Glenn-Chafee requires agencies to provide an explanation and certification of whether, one, benefits of the rule justify the cost and, two, the rule achieves the objectives of the rulemaking in a more cost-effective manner than the alternatives. If it cannot make such a determination, it has to explain why not. The Dole-Johnston substitute has decisional criteria that prohibit using a rule unless, one, the benefits justify the costs, the rule uses flexible alternatives to the extent practicable, the rule is the ``least-cost alternative'' that satisfies the objectives of the statute, and if a risk assessment is required, the rule is likely to ``significantly reduce the risks addressed by the rule.'' Why the decisional criteria are problematic: No. 1, cost-benefit analysis is an imprecise science. Cost and benefits are hard to quantify and are loaded with assumptions, and some economists might even say, tell me what answer you want and I will give you the right numbers for costs and benefits. Agencies should not be required to decide whether or not to promulgate a rule based just on a cost-benefit test. No. 2, another reason why decisional criteria are problematic: Agencies would have to choose the least-cost alternative. We should require agencies to choose the most cost-effective rule, not just the cheapest. The distinguished Senator from Louisiana has pointed to the out for agencies. They can choose something other than a least-cost solution in the event of ``scientific, technical or economic uncertainties or nonquantifiable benefits to health, safety or the environment.'' But what if there are certain quantifiable benefits? Agencies would still have to put out the least-cost rule, and that just makes no sense. Even if something is more cost-effective, beneficial to the people of this country, we still have to go with whatever the alternative was that was solely least cost. That makes no sense.

Mr. GLENN. This position, I submit to my friend from Louisiana, is 180 degrees opposed. ``To help set priorities for the review, I prefer some sort of advisory committee to assist the agency head. I am very skeptical of a petition process which is likely to skew the priorities, and am strongly opposed to any judicial review of actions taken under a lookback provision.'' Now, that is diametrically opposed to what the Senator is talking about here today. Further, if I might continue just for a second here, I think in all of our best recollection of those here who were in some of those negotiating sessions, Miss Katzen never supported the petitioner a right to have a major rule reviewed in 3 years. That is way too short and forces an agency to set priorities by petition and not by what is most important or what is most pressing. In addition, Dole-Johnston also allows for interlocutory appeal of three different issues. No. 1, a major rule. No. 2, does it require risk assessment? No. 3, does it require regulatory flexibility analysis? It allows judicial review in the middle of the rulemaking.

Mr. GLENN. Yes. I read it into the letter a little while ago. I will ask anybody to reread that to see if this is not a change in position.

Mr. GLENN. Would the Senator yield? That is what the Senator argued for in his letter.

Mr. GLENN. I would be happy to talk about advisory boards. We might be able to get some wording here that would be proposed as an amendment here, and we would be glad to consider that if that is possible.

Mr. GLENN. I do not know what happened in our session. There were so many things that occurred in those sessions. It would be hard to go back and recall everything that occurred.

Mr. GLENN. Could the Senator tell me when he objected to that? I do not believe there was an objection to that.

Mr. GLENN

Mr. GLENN. I move to lay that motion on the table. The motion to lay on the table is agreed to.