John Glenn

Mr. GLENN

Mr. GLENN. I yield the floor. Mr. KENNEDY addressed the Chair.

Mr. GLENN. Will the Senator yield?

Mr. GLENN. We are changing that. We realized that was a fault in ours, and we are changing that. The other bill, S. 343, has not been changed.

Mr. GLENN. Not in that regard.

Mr. GLENN. That is what Daschle does, whether you think so or not.

Mr. GLENN. Will the Senator yield?

Mr. GLENN. I want to be certain I understood, the Senator asked that the letter be printed in the Record; is that correct?

Mr. GLENN. I think that is good, because a moment ago the Senator from Louisiana was talking about how the judicial review requirements have been cut back, yet this letter from the Justice Department points out eight separate areas for judicial review, and lists them very specifically. They also list the areas that give them particular concern: Review of cost-benefit analysis and risk assessments, the APA standards of review, and the review of regulatory flexibility requirements. I know this is a lengthy letter. They give it in detail. But to those who think we are not increasing judicial challenges with S. 343, I think they should read this. This is a letter dated July 11 to the majority leader. It spells out in great detail the specific provisions in S. 343 that will result in unnecessary judicial review. That is the opinion of Department of Justice. I am glad the Senator is putting that in the Record.

Mr. GLENN. Mr. President, I wish to specifically address the Johnston substitute for the Daschle amendment that was proposed earlier today. Let me say in starting out that I agree with Senator Johnston's intent. I wish there was some other way to do this. I wish that what he is proposing was a freestanding amendment; I could probably vote for it. I do not want to commit to that at this point, but it would make it much more palatable if it was put in in the form of a freestanding amendment instead of trying to replace Senator Daschle's amendment. I agree with Senator Johnston completely that we want to cut down on a repeat of expensive procedures, and that is what he attempts to do with this amendment. I also understand his concern that he put this in to replace the Daschle proposal because he is afraid that, if the Daschle proposal passes with specific reference to food pathogens such as E. coli, salmonella, and so on, and this passes, it opens the door to a lot of other rules--cryptosporidium and a lot of other proposals. There is almost no end to the number of things that could be brought up as exceptions to S. 343, so I appreciate that. At the same time, having said that, I disagree with replacing the Daschle amendment and disagree specifically with the proposal by my colleague from Louisiana, Senator Johnston, for the following reasons. The first involves risk. The Department of Agriculture informs us that whether or not they have to do a second risk assessment at the final rule stage, they will not in any event be able to say that the risk assessment that they have already done, which the Senator from Louisiana refers to, complies with the requirements of S. 343 as it would be amended by the Dole-Johnston substitute. They would have to go back and comply with S. 343, such things as least-cost analysis, new procedures for cost-benefit analysis, and every one of these steps is subject to judicial challenge along the way. So it changes things dramatically. The Department of Agriculture says they could not just use the old information that they already have developed because there are now new requirements in S. 343, so it just would not work. This part of Senator Johnston's second-degree amendment does nothing to protect the issuance of USDA's meat inspection rule. It just would not do it. So that is the first point. The second point. Moving the effective date to April 1 for new proposed rules is certainly an improvement from an across-the-board, immediate effective date. I agree with that. Unfortunately, I do not believe it is enough. The requirements of this bill cannot be met within a few weeks or even a few months because the new rulemaking procedures, new least-cost rule criteria, preparing for a new level of judicial review, these all require months and months and months of new extra work. So this new proposed effective date will let already-issued proposed rules through the process without delay. It will, however, effectively stop all other new rules that are in the pipeline. Agencies will have to go back and start over with their proposals. Now, this is not right. And it will delay a large number of health and safety rules and just waste agency resources. Now, lest we think this is just my opinion and I am making this up, let me give a few examples that have come to us so far. This is not a complete listing by any means, but by setting April 1, which the Johnston proposal does now, we then cut out such things as some of the mammography regulations; we cut out some with regard to flammability standards for upholstered furniture; we cut out some regulations with regard to cables and lead wires that particularly protect children. These are just three examples here of rules that would not go into effect, would not be exempted by the April 1 deadline.

Mr. GLENN. Yes.

Mr. GLENN. No. I said that I was sorry that the Senator's amendment was not proposed as a completely separate amendment, that we should let the Daschle amendment go and have a vote of its own, and that I might even be able to support the Senator's proposal. I favor the general proposal of trying to cut out unnecessary paperwork, unnecessary risk analysis, unnecessary cost-benefit analysis, to cut those out and to prevent duplicate paperwork. Now, I would have to go through and read your amendment to be specific.

Mr. GLENN. I would have preferred that. I said that earlier this morning in our private conversation. What I objected to specifically was cutting Daschle out for what he proposed. This substitute for Daschle is not a second-degree amendment. It substitutes for Daschle.

Mr. GLENN. I have made my comments about it earlier. I am not advising the Senator what to do. I had my objections this morning that your amendment did away with Daschle. That has been my concern all the way through this, because I think his amendment is good. I think it corrects the inadequacy of the amendment that we passed yesterday. I support the Daschle amendment for all the reasons I stated earlier in the Chamber today. If the Senator wants a vote on his amendment, we can have a vote on his amendment. I think there are some problems with it that I was about to go into in more detail. If he wishes to withdraw his amendment, then we could proceed with Daschle. Mr. President, while the other conversations are going on, I will proceed with some of these examples of what would happen if we set the 1 April date that is proposed in the Johnston amendment. Here is one on mammography that would not fit under the exemption; it would be held up; it would be delayed. Let me read this. The Mammography Quality Standards Act--MQSA, as it is called--of 1992 requires the establishment of quality standards for mammography clinics, covering quality of films produced, training for clinic personnel, recordkeeping, and equipment. MQSA resulted from concerns about the quality of mammography services that women rely upon for early detection of breast cancer. FDA is planning to publish proposed regulations to implement the MQSA. The potential magnitude of these regulations is substantial. Improving the quality of mammography translates directly into early detection of breast cancer, and earlier detection of breast cancer increases the likelihood of successful treatment and survival. An interim rule in this regard was published December 21, 1993, and publication of the proposed regulations is planned for October 1995. Under the Johnston amendment, the Johnston replacement for the Daschle amendment, this is well after the 1 April deadline so this would not be exempted. They would have to go back then and redo all of their previous analyses under the new guidelines, the new directions given in S. 343--unnecessary delays, and all the work that has been done already, unnecessarily so. Let me bring up another one that is different: Flammability standard for upholstered furniture. The Commission is in the process of developing a proposed flammability standard for upholstered furniture. The purpose of the standard is to reduce the deaths and injuries that result from fire incidents involving upholstered furniture started by small open flames--matches, candles, lighters, so on. The beneficiary of the rule: The potential victims of house fires would benefit from this rule. In 1992, there were an estimated 80 deaths, 490 injuries, $48.3 million worth of property damage associated with open-flame ignition of upholstered furniture. A substantial portion of these are believed to be related to small flame sources. The impact of S. 343 would keep the Commission from doing the work necessary to develop this standard until after the moratorium period. The delay could result in additional fire-related injuries and deaths that could have been avoided. Now the date: The Commission issued an advance notice of proposed rulemaking on June 15, 1994, and is working toward a proposed rule. When that would be put out would obviously be after the April 1 deadline. Let me give another example: cables and lead wires. The Food and Drug Administration has proposed a regulation to require that cables which connect patients to a variety of monitoring and diagnostic devices be designed so that the cables cannot be plugged directly into a power source or electrical outlet. The agency has received several reports of death and injury resulting from misuse of these devices, including one death and two cases of serious electrical burns when unsupervised children plugged cables from a home apnea monitor into outlets; one death in a hospital when electrocardiogram cables were plugged into an infusion pump power cord; and a death when a neonatal monitor's lead wires were plugged into a power cord for another device. Advance notice of proposed rulemaking was issued on May 19, 1994. The proposed rule was published June 21, 1995, comments to be received by September 8, 1995. Obviously, that would not go into effect. It would not be permitted to go into effect without all the additional analyses provided in S. 343. Mr. President, if we are going to have a reasonable effective date, I think we should do what we have in the Glenn-Chafee bill. We should put the effective date out 6 months beyond passage of the legislation to allow agencies some reasonable time to put into place the new requirements to administer the legislation. The amendment proposed may let the meat inspection rule through; too many others will still be stopped, including these I just mentioned. Another example. There are also some other problems with S. 343. There is a general problem illustrated by the debate today and yesterday. The amendments offered yesterday, and Senator Johnston's second-degree amendment this morning, show without a doubt that the proponents of S. 343--and I think they know it--have a less than satisfactory bill. They know it is a bad bill. I think it goes too far, and I think they also know it goes too far, because each time we get close to raising issues or offering amendments, as happened yesterday, they leap up to modify their own bill to avoid the inevitable conclusion on the floor that their bill is flawed. I think the bill they brought to the floor would harm public health and safety. They may not be willing to admit that, but I think they know it is true nevertheless, and the examples I gave this morning of what would happen to the change to it that is proposed by the Johnston amendment, which replaces the proposal made by Senator Daschle earlier today, would go further in that direction, as I see it. Mr. President, I want to point out one other thing. We talk about these amendments and rules and regulations and what would be required of the agencies to comply with the requirements of this bill. Let me start off by saying that in committee, we had testimony that the estimate is that for each major rule and regulation that is put out under the version of regulatory reform that passed the House, it would cost somewhere around $700,000 to put the rule out. That was questioned by some people when I brought that out on the floor yesterday, and we discussed it in private back here. But let me give an example. The Clean Water Act was passed back in 1972. There was an amendment to it later in 1972. There was another amendment to the Clean Water Act in 1977, and another one in 1987. It has been 8 years from 1987 to the present time. Just one regulation put out pursuant to that Clean Water Act, and I do not have a listing of how many regs were put out overall. But one regulation, that pertaining to effluent limitation guidelines and standards for metal products and machinery put out under that act, has taken 8 years to do. This thick document that I hold before you is just the index for it. It just went into effect April 1995. That is just the index. I wish we had time to go through all these pages. These are single-spaced pages, one after the other, all the requirements. This is just the development document for how they were going to go about it. This is pursuant to laws that we passed. If we want to see who is at fault for a lot of this, look in the mirror. This is just a development document for the proposed effluent guidelines and standards for the metal products and machinery phase I point source category. That is just one regulation. Do you know how much shelf space is taken up with that one regulation, that one single regulation put out pursuant to what we passed here in the Clean Water Act? I stepped off the width of this Chamber a while ago, and it comes out to somewhere around 112 to 115 feet of pacing here. That one regulation has shelf space of 123 feet just for the documents involved with one regulation. [[Page S 9761]] Yet, we passed yesterday afternoon a new requirement in this bill that would open it up for hundreds and hundreds of new regulations that would have to meet the requirements of S. 343. Now, sometimes I do not think we know what we are doing around here. In other words, just the shelf space for this regulation would be about 10 feet longer than from that wall to this wall in the Senate Chamber. I know anybody that happens to be watching this discussion on TV does not have an idea of what this dimension is here. But it is about 45 paces across here to get that kind of distance, taking about a yard per pace. That is one regulation we are talking about, under the Clean Water Act. I do not know how many regulations are required. I think there are probably several hundred. I do not know the exact number, but I am sure there are at least several hundred under the Clean Water Act that we passed right here. Can they cut back on that and can they get by with 60 feet of shelf space? I do not know. I know that what we are going to require with this legislation whole new requirements, a whole new cost- benefit analysis, whole new risk assessment, least cost analysis--that means agencies have to develop a number of additional options to see which one is least costly. You cannot make more judgment and say we go with the one we think is most likely to be successful and exercise some commonsense judgment. Now we are going to have to develop several options under each one of these things, and we will probably double that space across the Chamber that would be needed to hold all these analyses. That is just an example of what we are requiring here with some of this legislation. At the same time, we are talking about cutting down the agencies, cutting back on their budget, cutting people, getting people out of Government. Through our actions here, we are loading on additional requirements that are almost unbelievable. Can you imagine one regulation that requires 123 feet of shelf space and requires documents like I held up here just for the index? That is just one under the Clean Water Act of 1972. And the subsequent amendments, and the final amendment that requires this was put out 8 years ago, and the final rule is coming out in 1995. So, Mr. President, I am very concerned about where we go with this. I think we take a much more logical approach with S. 1001, the Glenn- Chafee bill. We would not leave out certain things, such as I mentioned here on mammography; flammability regulations, which protect families in homes; on the cables and lead wires; medical machinery, and so on. Those would all be left out in S. 1001. They would have to go back and go through this whole process over again if we passed the amendment submitted by the Senator from Louisiana to S. 343. So, for all these reasons I have just given, I oppose this. I hope we can have, but I do not know whether the Senator from Louisiana still wants, a vote on his amendment. He talked about possibly withdrawing it so we can get on with a vote on the Daschle amendment. Mr. President, I ask unanimous consent that an article from the July 17, 1995 Business Week be printed in the Record.

Mr. GLENN. I yield the floor. Mrs. MURRAY addressed the Chair.

Mr. GLENN. Mr. President, I think the decision expressed by Senator Johnston to go ahead is one I concur with. I think we have had enough debate on this, all parts of this--the Daschle proposal and the substitute Johnston amendment. We have gone through all of these issues this morning. There have been a number of people who have come to the floor and debated this. I think we are ready for a vote. And I checked with Senator Daschle and he does prefer to have a vote on his. So we will just go ahead and vote through on both of them and see where we go. I yield the floor.

Mr. GLENN. Will the Senator yield?

Mr. GLENN. If the Senator will yield for 1 minute, the Daschle amendment----

Mr. GLENN. When did it get off the Senator from New Jersey?

Mr. GLENN. The Daschle amendment permits USDA to go ahead, without going back and going through the hoops and the new things that would delay the regulations being put out that would be required under S. 343. That is what he does. Recent surveys have shown that about 4 percent of the ground beef in supermarkets is tainted with E. coli. I do not know what else. That is 1 out of 25 hamburgers, if you want to put it on a percentage basis.

Mr. GLENN. I am told these are covered at different dates. I would have to go back and correct this. But the people administering this have looked at what the Senator is proposing and they say it would cut them off.

Mr. GLENN. Mr. President, I, too, want to get on with the vote on this. I will be very brief and take just a couple of minutes. In summary and in response to the Senator from Utah, the manager on the other side, I, too, wish that we had a separate vote on this Johnston amendment. We might be able to vote for it, but not if it replaces Senator Daschle's amendment. The Department of Agriculture informed us whether they have to do a second risk assessment in the final rule stage, they are not going to be able to say that they are already doing risk assessment, complies with the requirements of S. 343, as it would be amended by the Dole- Johnston substitute. In other words, they would have to go back to least-cost, new procedures--all subject to judicial challenge and so on.

Mr. GLENN. I am happy to yield to the Senator.

Mr. GLENN. Yes. Mr. President, this brings up the second point. That is, moving the effective date to April 1 for new proposed rules. While it may be an improvement from an across-the-board immediate effective date, unfortunately I do not think that goes far enough. This bill cannot be met within a few weeks or even a few months. The new rulemaking procedures, the new least-cost, all the rest of these things that go into this thing are something that is going to take some time to do. April 1, as an example, setting that as the cutoff time, means that regulations on mammography would be cut off. Regulations on the educational title I, help for the disadvantaged, where they are planning to implement those regulations this fall, in school this fall--those would be cut out.

Mr. GLENN. Yes.

Mr. GLENN. I believe on all these the notice of proposed rulemaking was April 1.