John Glenn

Mr. GLENN

Mr. GLENN. An interim rule was published on mammography on December 21, 1993, and publication of proposed regulations is planned for October 1995.

Mr. GLENN. Publication of proposed regulations is planned for October, 1995.

Mr. GLENN. I do not have a particular date on that. It was my understanding, and the people that administer this have interpreted the Senator's proposal, his amendment, as cutting them off.

Mr. GLENN. No, I said publication of the proposed regulations was planned for 1995.

Mr. GLENN. That was an interim rule published in 1993.

Mr. GLENN. Mr. President, I will go on with this and then I propose we get on with the vote on this as soon as we can. I was talking about the Elementary and Secondary Education Act. That would be held up because the dates on that--the final rule is coming out by July 1, 1995. That would be knocked out. The flammability standards for upholstered furniture would be knocked out. Cable lead wires used on medical equipment--that has caused considerable problems. There is a new rule coming out that would be held up. This April 1 deadline, whether we argue about proposed rulemaking or specific dates, a couple of things that came to our attention this morning would be held up. Mr. President, with that I suggest the absence of a quorum.

Mr. GLENN

Mr. GLENN. Mr. President, I would like to see it first so we can consider it with staff and look at it. We will put in a quorum call. I do not know what this does to our 5 o'clock time that was planned. I think we can probably resolve it between now and 5 o'clock. If we do, I will have no objection.

Mr. GLENN

Mr. GLENN. Mr. President, let me clarify this. There was an agreement worked out between the leaders. Senator Hatch was in the process of reading that. There was disagreement with it from Senator Johnston, who is a coauthor of S. 343, the Dole-Johnston bill. He wanted to change his amendment in some respects in the middle of the unanimous-consent request. I wanted to see what the changes were, which I do not think is at all unreasonable. If they were innocuous, fine, we would go ahead with it. It turned out they are a bit more substantive than I anticipated--dates changed, wording changed. So we have had staff working on it as fast as we can, checking with people who are more familiar with this than some of us. So that is what is going on right now. There was no intention to delay on our part whatsoever. It is just that in the middle of a unanimous-consent which we thought we had agreement on, changes were made in what we were about to vote on supposedly at 5 o'clock. I do not think it is unreasonable at all to know what it is we are voting on when something is being changed. That is the problem. They are in the cloakroom right now. I think we are going to have agreement on this shortly, but I am not willing to agree to a unanimous-consent request until we know what the vote is going to be on. We thought it was going to be on the amendment that we debated all day. The amendment has changed somewhat. As soon as this is worked out, we can set the vote. There is no attempt to delay. The change is made not in favor of the Glenn-Chafee bill, but one of the coauthors of the Dole-Johnston bill. That is the reason we are where we are with this delay. Mr. SPECTER addressed the Chair. [[Page S 9779]]

Mr. GLENN

Mr. GLENN. I will not yield. We hear it is not needed. We hear that such rules are exempted in this bill--but it still leaves it up to the agency. What if we have somebody in the agency who does not want to do this? I am not going to make too much out of that because, we have to trust the people in the agencies. But to say that we should have no concern, that nobody on this floor, nobody in the whole U.S. Senate is against health and safety rules when we had a vote in committee that prevented rules addressing E. coli and cryptosporidium, which was another vote, from being exempted from that moratorium is just not right. There is very, very good reason why we are concerned about this. We did not have a single Democratic vote that was against exempting these important rules, but we did have votes on the Republican side that prevented that exemption being made in committee. That is the reason we are concerned about this. This is not something we are making up. It is not something fictitious. It showed the intent on the other side, at least in that case, under the regulatory moratorium, of not being willing to give one inch on this issue. Not even when we have about 250 deaths a year, and over 20,000 people made ill by E. coli bacteria every year. Further, under this bill, there are still problems even if the agency declares an emergency. An emergency exemption is provided, and I agree and I know the Senator from Louisiana is going to say that the agency has the discretion to exempt these rules, and they can. But the bill now says that within 180 days of putting the rule out, the agency has to go back and do the cost-benefit analysis and risk assessment. Even with that kind of an exemption by the agency, I do not know whether they can do a cost-benefit analysis or whole risk assessment in 180 days. That is very difficult. Sometimes these things take years--2, 3, or 4 years or more. If they cannot complete the work required what happens then? And even then, these rules would still be subject to the petition process. The agencies might have to review the rule again, which is subject in turn to judicial review, or judicial challenge, anywhere along the line. So there are still weaknesses and there are areas where we are still concerned about this. But I come back to why we are concerned about this. We are not digging up things. We are not desperate. We are not wild-eyed leftists over here. We are trying to protect the people of this country from E. coli in this particular case. I think the majority leader has [[Page S 9659]] addressed some of the problem with this. Maybe it is sufficient. I do not know. We will have to talk it over a little bit to see what we want to do on this. But there is very, very good reason why I personally had concern about this. It is heartwrenching to sit in the committee and hear mothers and fathers come before the committee talking about how they lost their children to E. coli. We see statistics. We know that there are estimates that about 4 percent of the meat is tainted. So you had better cook it well. I will tell you that. Four percent--that means that 1 out of every 25 times you buy a hamburger, it could be tainted. We want to protect the people of this country against that kind of meat contamination, if we can. Of course, we do. We brought this up in committee. We could not get that exemption through in the committee. It was not exempted from the moratorium. That is the reason we are concerned about this. So this is not something fictitious. This is something that we have already voted on in committee. The Republicans voted solidly on the other side to not exempt E. coli from that regulatory moratorium that was proposed at that time. The regulatory moratorium still has not been completed, because we have not gone to conference with the House yet. I still have some concern about the processes under this bill, S. 343, that would require that within 180 days a cost-benefit and risk assessment would have to be done for rules that have been issued under this exemption. I do not know whether that can be done. But if it is not done, what would happen then? It would still be subject to petitions to review the rule all over again, even though everybody can say E. coli is a danger to the health and safety of the people of this country. Yet, in committee Republicans voted against exempting that; voted to not give the protection that the people of this country deserve. So I am glad that the majority leader has done what he has done this morning. We will have to discuss whether we think this goes far enough. But there is very good reason why we are concerned about this. Our concerns are not fictitious, not something we are making up, and it is not something where politics is involved. It is the health and safety of the people of this country. It is not because of politics, as the majority leader indicated a little while ago, that we are talking about E. coli. And an exemption is needed. The vote in committee showed that we needed legislation in this regard. So we will see whether we think it is adequate or not. I yield the floor. Mr. JOHNSTON addressed the Chair.

Mr. GLENN. We have changed that in the Glenn-Chafee bill.

Mr. GLENN. We changed the sunset and review provision.

Mr. GLENN. We no longer have a sunset in this. The bill came out in committee and we changed that later on.

Mr. GLENN. I yield the floor.

Mr. GLENN. Yield for a question.

Mr. GLENN. I could not agree to doing that. That is done by the leadership.

Mr. GLENN. No, it came out with a 10-year limit, with a Presidential right to extension. If the agency did not review it, it would sunset. We now realize that was wrong because somebody could delay it over in an agency and sunset a bill by not doing anything. So we took that out. S. 1001 does not have that in there.

Mr. GLENN. Reserving the right to object.

Mr. GLENN. Mr. President, I am glad the majority leader has addressed the E. coli situation. I would like to check with some of the people who were interested in this on our side before we proceed with this. It might even be possible to accept it, I do not know. I would like to check on it further before I agree to anything at this point.

Mr. GLENN. Mr. President, I am sorry the majority leader, who proposed the amendment, has left the floor. I hope he may be listening, because there is more reason to be concerned about this than he indicates. We hear repeatedly, ``This is not needed, it is not needed, it is not needed.'' Everybody says that. Yet we are still leaving it up to the agencies to make the decisions. Maybe that is OK. But let me tell you why we were planning to address E. coli this morning anyway before the majority leader came back and put in the amendment. There is a track record here, going back into committee, of Republicans not voting to take E. coli out of consideration here. We had a regulatory moratorium bill proposed a few months back that came before the Governmental Affairs Committee. It would have stopped everything in its tracks. It was a regulatory moratorium for everything from the last election on-- any rule, any regulation that was in consideration. Even some of those that had been finalized already and were in effect were cut off. We had a list of rules in committee that we thought should be exempted, that should not be subject to that regulatory moratorium. There was no exemption for health and safety in committee on that. And what happened? I put in an amendment in committee that would exempt rules to protect against E. coli. We had parents who lost children come before the committee and testify as to the horrible death that their children suffered with E. coli. Their children died. And I put in an amendment in committee to exempt E. coli from that moratorium. We had a record rollcall vote and I lost, because the Republicans opposed it. I lost on that, 7 to 7, one Republican being absent. I lost that vote to exempt E. coli, with seven Republicans on the other side of the aisle voting to keep E. coli in, in that regulatory moratorium.

Mr. GLENN. No, I will not yield at this point.

Mr. GLENN. I yield the floor.

Mr. GLENN. Mr. President, I ask unanimous consent that Jeneva Craig, of my staff, be granted the privilege of the floor during consideration of this legislation.

Mr. GLENN. Mr. President, we got off to a rather fast start yesterday and we did not get to give our opening statements on the general view of the legislation before us. I would like to do that at this time. This is a most important matter that comes before us with this legislation. [[Page S 9662]] It may well prove to be, as far as impact on the American public, the most important legislation we pass this year. I am under no illusions it will get the most attention, but it may be the most important. Before I launch into my statement, I ask unanimous consent to have three editorials from the Washington Post, the New York Times, and the Cleveland Plain Dealer, which discuss the issue of regulatory reform, printed in the Record following my statement.

Mr. GLENN. Mr. President, regulatory reform is one of the most important issues before us. Make no mistake, I want regulatory reform. I think we need regulatory reform. Large businesses want regulatory relief, so do small businesses, so do individuals. And their general discontent with regulatory burdens is, in many ways, justified. I believe that. That is why I want regulatory reform to be the right balance. Why do we have to have a lot of regulations? Are bureaucrats just deciding to write as many regulations as they can think of over in the agencies? No, that is not the answer. The process is that Congress passes laws and agencies carry out the intent of these laws through regulations, through the details that are necessary to make the laws applicable. Unfortunately, Congress passes a lot of ill-thought-out laws in insufficient detail in the first instance, and then we complain bitterly when the regulation writers in the agencies overstep into unintended areas. In other words, if we want to look at some of the culprits in overregulation, let us look at ourselves, let us look in the mirror. I repeat that sentence. Congress passes a lot of ill-thought-out laws in insufficient detail in the first instance, and then we complain bitterly when the regulation writers in the agencies overstep into unintended areas. I believe Congress needs to write laws more clearly and give agencies more guidance. That way, agencies will not have to guess what our intent was when they write the regulations that implement the laws. In other words, Congress should do the work and weigh our actions more carefully, including the costs and benefits of a law. We should be doing all of that right here before passing legislation that will be implemented through regulation. As we debate how to reform the regulatory process, we need to ask ourselves two essential questions. First, does the bill before us provide for reasonable, logical, and appropriate changes to regulatory procedures that eliminate unnecessary burdens on businesses and on individuals? Second, at the same time, does the bill maintain our ability to protect the environment, health, and safety of all of our people? In other words, does the legislation strike an appropriate balance? That is the question. Those are the two tests this legislation must meet. I believe that if it can meet those two tests, there will be broad support for this effort. Any bill that relieves regulatory burdens but threatens the protections for the American people in health, safety and the environment should be opposed. Regulatory reform is very complicated. The idea sounds great, but the devil is in the details. Cost-benefit analysis, risk assessment, judicial review, the specific elements of regulatory reform, are complex--very complex. The parts do not make easy sound bites. But without making sense of the words, there can be no real reform, let alone a workable Government. I am very concerned that in order to keep up with the schedule established by the other body, the Senate is being rushed to consider a complex and lengthy proposal whose consequences are not yet fully understood. Regulatory reform should be arrived at through a process of deliberation and bipartisan consultation. That is the process we used in the Governmental Affairs Committee. From our landmark regulatory reform study clear back in 1977, through legislation and more than a decade of oversight of OMB and OIRA paperwork and regulatory review, and now to the consideration of legislative proposals in this Congress, the Governmental Affairs Committee has approached this issue in an open and bipartisan manner. That was our mode of operation during my years as chairman. And this year, under the leadership of the new chairman, Senator Roth, our committee held four hearings and developed a unanimous bipartisan regulatory reform bill, and S. 291 was the number as it came out of committee. Our committee report also reflects this bipartisan spirit and deliberative process. Now, I make these points because the proposal, S. 343, that has been brought to the floor has been developed in a similar open and deliberative manner. The bill is based on the Judiciary Committee's reported bill that reflected a divisive committee, a proceeding that was cut short. Until recently, negotiations on this bill went on behind closed doors. During the past several weeks, there have been many attempts to work together to improve this bill. A number of Members have worked diligently to explain our differences and what we think needs to be changed. Before these discussions were completed, S. 343--this bill-- was brought to the floor. It is a bill that we believe continues to have a great number of problems. The result, from what I can see, is a bill tailored to special interests. It is a lawyer's dream. It does not meet the dual goals of protecting health and safety and, at the same time, having a more effective and more 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 more public protections delayed or bogged down in redtape and delay and courtroom argument. That is why Senator Chafee, myself, and several others offered an alternative bill just before the recess. It is S. 1001, and it is based on that same Governmental Affairs Committee bill, S. 291, that was reported out with full bipartisan support. The vote was 15 to 0. There were eight Republicans and seven Democratic votes out of committee. S. 1001 provides for tough, but fair, reform. It will require agencies to do cost-benefit analysis and risk assessments, but it will not tie up all their resources unnecessarily. It does not provide for special interest fixes. It does not create a lawyer's dream. It provides for reasonable, fair, and tough reform. It reflects the work of the Governmental Affairs Committee on S. 291 and only changes this bill in three ways. First, the definition of a major rule is one that has an economic impact of $100 million. There are no narrative definitions, such as ``significant impact on wages.'' Second, the automatic sunset of rules that are not reviewed has been changed. If agencies do not review rules within the allotted timeframe, they must commence a notice of proposed rulemaking to repeal the rule. In other words, the rule could not just sit there and automatically become unenforceable. With this approach, there is opportunity for public comment, and rules will not sunset without adequate opportunity for review. Third, we limited the risk assessment requirements to particular programs and agencies. We also made some technical changes in line with the National Academy of Sciences' approach to risk assessment. Those are the three changes to S. 291 that we incorporated when it became S. 1001. Let us remember what is at stake here. Regulation is important because rules are needed to implement most laws. There is no way around it. Public health and safety, environmental protection, equal opportunity in education and in employment, stability in agriculture and other sectors of our economy, each area has shown that it needs the help of legislation and regulation that follows to make it workable. I would like to talk for a few minutes about a different, but related, regulatory matter. I mentioned it earlier this morning. That was regulatory moratorium. We debated that at the end of March. I want to talk about here, because I believed many of the provisions of S. 343 could have a similar effect in undermining health and safety protections for the American people, their families and their children. If there was ever a proposal to make one stop and think about what is at [[Page S 9663]] stake, the moratorium would do it. It would have stopped all regulations dead in their tracks, starting back at last year's election through the end of this year, no matter what State the regulations were in, no matter whether they were good or bad regulations. Now, proponents of the moratorium, like proponents of S. 343, are ready to subject the people of this country to the slashing of regulations without due examination of what could happen, without considering what health and safety protections may be at stake. We had hearings in committee, and I met with Nancy Donley of Illinois and Rainer Meuller of California, who both lost children to E. coli- tainted hamburgers. Both came to Washington intent on looking in the eyes of politicians who were more willing to tolerate endangering children than facing up to a responsibility and making a regulatory process that works. According to USDA's Food Safety and Inspection Service, 3,000 to 7,000 Americans die of tainted food each year, and 3 to 7 million Americans are sickened by food-borne illness. This is costing lives and health and millions of dollars. Can anyone honestly say that we do not need protections and an effective regulatory process? Further, I heard from airline pilots who were angry that Congress might sacrifice air safety standards in order to appear strong not by being proponents of enhancing safety regulations, but by going too far the other way and delaying and even slashing safety rules, all in the name of regulatory reform. In other words, we would reform ourselves into greater danger for every airline passenger. I heard from public health experts who are alarmed at the threats to the safety of drinking water from dangers like cryptosporidium, which killed 100 people in Milwaukee in 1993, and made 400,000 sick. So the moratorium would have halted drinking water safety rules until the end of the year. But the point of bringing up the moratorium here is not to confuse the issue, it is to point out that the bill we take up today could well delay some of these items well beyond the end of the year. It could delay them significantly beyond that. Of course, rules, regulations, and regulators are not always right. There can be different approaches to protecting the public from disease or injury. That is why reform is important. Regulations do not come free. Their costs are weighing down the American people. Businesses, private citizens, universities, and State and local governments all complain that too many regulations go too far, that they just are not worth it. So our job is to find a balance that recognizes both the essential role of regulations in our society and the social and economic price paid by an overreliance on regulation. Finding this balance means evaluating the benefits as well as the burdens of rules and using the best scientific and economic analyses to do so. What is the economic impact of regulation? How do we measure that impact? How do we weigh economic costs and benefits? What are the societal costs and benefits? Agencies need to do better in each of these areas, and I believe true regulatory reform can improve agency analysis and make the Federal rulemaking process work better. But accomplishing these reforms is easier said than done. There is wide disagreement in both the economic and scientific communities about the methodologies and underlying assumptions used in performing these analyses. In our committee, we heard from witnesses on every side of these issues. In developing S. 1001, we tried to craft a workable framework for regulatory decisionmaking. The product of our committee work was a unanimously supported, tough regulatory reform bill. With only a few changes--the ones mentioned--Senator Chafee, myself, and others have proposed this bill, S. 1001, as an alternative approach to regulatory reform. It would improve agency decisions, lessen burdens on the American public, improve the implementation of our laws, and make Government more efficient and more effective. I intend to offer S. 1001 as a substitute to S. 343 at the appropriate time. The debate on the regulatory reform before us will, I believe, reveal many of the failings of S. 343, and the more practical advantages of the Glenn- Chafee bill. Regulatory reform should focus on the following central issues, which are reflected in S. 1001. I will expand on these principles in more detail later in my statement: First, agencies should be required to perform risk assessments and cost-benefit analysis for all major rules. Second, cost-benefit analysis should inform agency decision making, but it should not override other statutory rulemaking criteria. Third, risk assessment requirements should apply only to major risks assessments, and these requirements must not be overly prescriptive. Fourth, agencies should review existing rules, but their review should not be dictated by special interests. Fifth, Government accountability requires sunshine in the regulatory review process. Sixth, judicial review should be available to ensure that final agency rules are based on adequate analysis. It should not be a lawyer's dream, with unending ways for special interests to bog down agencies in litigation. Seventh, regulatory reform should not be the fix for every special interest. These principles would establish for the first time a Government-wide comprehensive regulatory reform process. This process will produce better, less burdensome, and probably fewer regulations. It will also provide the protections for the public interest that the American people demand of their Government. I do not believe S. 343 follows these principles; instead it does special favors for a special few--and in so doing 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. I mentioned the seven principles. Let me talk about each of the seven principles I raised in a little more detail. Principle 1. Agencies should perform risk assessments and cost- benefit analysis for all major rules. Most of us would agree that before an agency puts out a major rule, it should do a cost-benefit analysis, and if it makes sense, a risk assessment. Let us start with one of the most fundamental questions in this debate: What should be considered a major rule? In the Glenn-Chafee bill and the bill we reported out of the Governmental Affairs Committee on a bi-partisan, 15-to-0 vote, we decided that a major rule should be one that has an impact of $100 million. A $100 million threshold has been the standard under Presidential Executive orders for regulatory review since President Reagan in the early 1980's. If anything, given inflation, that threshold should go up, not down, if you think about it. S. 343 has a threshold of $50 million; the House bill casts an even wider net of $25 million. These are just simply too low. Remember--this bill will cover all Federal agencies--not just the Environmental Protection Agency or the Food and Drug Administration. All Federal agencies--Treasury, Commerce, Agriculture, and so on--would have to do extensive analysis for every single rule that had a $50 million impact. Or, if the House wins on this, a $25 million impact. What are we trying to accomplish here? If it is to make the agencies use these important tools for important, economically significant rules, I believe we should keep the threshold high. If we demand that rigorous cost-benefit analysis and risk assessment be required for just about every rule, we will guarantee that we will use up valuable agency resources with very little to gain. One group that testified before the Governmental Affairs Committee estimated that the House bill would add 2 years to the rulemaking process and cost agencies a minimum of $700,000 per rule. I had some figures yesterday that computed how expensive that could be and it gets up into the hundreds of millions of dollars. Let us remember that we are cutting the Federal work force and consolidating agency functions. This bill should not create needless work that has little benefit. What is the cost-benefit analysis for using $50 million or $25 million? I believe it is going to cost the agencies a bundle of money and resources and the benefits are few. Talk about poor cost-benefit ratios. Let us stick to truly major [[Page S 9664]] rules and set that threshold at $100 million. I say let us first see how this works at the $100 million level. If we see that it works well, I would be in favor of reducing the threshold at a later date to capture more rules, whether down to $50 million or $25 million. But I want to make sure that what we pass now works, is fair, and brings relief for the biggest problems. I do not want to flood the system with so many rules that nothing works, and we find ourselves back here in 3 or 4 years reforming the regulatory process once again. I feel this even more strongly after yesterday's acceptance of an amendment to include significant rules under the Regulatory Flexibility Act in the definition of major rule. This will add well over 500 rules to those having to go through cost-benefit analysis under S. 343. This is just too much. Principle 2. Cost-benefit analysis should not override existing statutes. Another question that we must decide is how cost-benefit analysis should be used. I believe, and many of my colleagues believe, that in no way should cost-benefit analysis override existing statutes. This is the so-called supermandate issue. We all agree that it is a good idea to make agencies figure out what the costs and benefits of a rule are before issuing it, and to see whether the benefits justify the costs. But let us keep in mind that this tool is far from a hard and fast analytical science. There are lots of assumptions that go into figuring out the costs of a rule and the benefits of a rule, and many benefits and costs are unquantifiable. That is certainly no argument for not doing it. I believe it can be a very useful tool in the decisionmaking process, but it does show that caution is in order. Agencies often have to get cost data from the industry it is intending to regulate. And some industries have been known to overstate how much it will cost to comply with a regulation. The benefit side also has lots of difficulties. How much value do we place on a human life? Does it matter if that human is an old man or a young girl? What is the value of preserving a plant species? What is the value of avoiding an injury to a worker? Clearly, agencies should not be forced to quantify everything. On this point, Senator Dole, Senator Johnston, Senator Chafee, and I--and in fact, probably all of us--agree. We should encourage agencies to estimate costs and benefits--both quantifiable and nonquantifiable--and make totally clear what assumptions they use to do the analysis. This can help inform their decisionmaking. But this is where we differ: Should the result of a cost-benefit analysis trump all other criteria for deciding whether or not an agency should go forward with a rule? The way S. 343 is written right now, that is what would happen, and I do not think that makes sense. First, in passing legislation, we, in Congress, have said to agencies, ``Go issue a regulation, based on what we've said in the statute''--whether it be ``an adequate margin of safety'' or whatever. The agency should not have the power to say, ``Well, we can't justify the costs given the benefits of this rule, and therefore, we are not going to issue this rule.'' This would basically be handing our congressional responsibility over to the agencies, based on a less- than-perfect tool of cost-benefit analysis. I heartily believe that agencies should tell us if they really do not think a rule's benefits justify its costs. But then the rule should come back to us in Congress to figure out what to do. This will also help to inform us in Congress about a law that should be changed. For these reasons, I strongly support--and my colleague Senator Levin has been a strong leader on this issue--a congressional review or the right to veto rules through an expedited review process. This makes a lot more sense than having a supermandate,'' which would make cost-benefit analysis override an existing statute. Remember that the congressional review of rules passed the Senate 100 to 0. It makes sense to do business this way. Let me give an example of how hard it is to figure out costs. Everyone acknowledges that it can be very difficult to quantify benefits, but most assume that cost numbers are easier to estimate accurately. But let us consider the example from the Occupational Safety and Health Administration [OSHA] of the cotton dust standard. Several hundred thousand textile industry workers developed brown lung--a crippling and sometimes deadly respiratory disease--from exposure to cotton dust before OSHA issued protective regulations in 1978. That year, there were an estimated 40,000 cases, amounting to 20 percent of the industry work force. By 1985, the rate had dropped to 1 percent. The initial estimates in 1974 for industry to comply with a stricter standard was nearly $2 billion. By 1978, OSHA estimated the same costs to industry to be just under $1 billion. So the estimate fell by 50 percent by the time the standard was issued. When the actual costs of compliance were reported in 1982, they were four times lower than the $1 billion estimate. It is likely that if OSHA had to use a cost- benefit analysis to figure out whether to put out this standard in 1978, not having the knowledge that they did in 1982, they would not have done it, even though it is clear to me that the great success of this rule certainly justifies its costs. Let us be clear on this point: Cost-benefit analysis should not override existing statutory rulemaking criteria. Proponents of S. 343 say that this bill does not have a supermandate. It has been repeated over and over that this bill does not have the supermandate. Many of us disagree. Language to clarify this was offered during negotiations on this bill, but it was rejected. We still do not have clarifying language on this point. If there was no supermandate lurking here, why was the clarifying language rejected? So the more I hear that this is not a problem, but that the language cannot be clarified, the more I have to wonder. Another problem that many of my colleagues have discussed at length with the supporters of this bill is the issue of least cost. Right now, this bill requires two major determinations before a rule can be issued: One, that the benefits justify the costs; and, two, that the rule adopts the least-cost alternative. Let us think hard about these words ``least cost.'' Do we always want the agencies to do the cheapest alternative? What if an alternative that costs just $2 extra saves 200 more lives? Do we say pick the cheapest, and do not look at benefits of the alternatives before you? That is what this bill does. We should give the agencies some leeway to use common sense. They should be able to choose the most cost- effective approach, looking not just at costs but also at the benefits. Here, we would be requiring them to pick the cheapest alternative, which may not always be the most cost effective. In talking about this economic analysis, let me say a quick word about trying to reduce the costs of regulation on industry. In our efforts to reform the regulatory process, we should encourage agencies to take a hard look at market-based incentives to achieve regulatory goals. Many have shown that we can achieve our environmental goals, for example, at a lower cost than we do now by using market-based mechanisms. These alternatives allow industries more flexibility in how they meet a standard. For example, rather than telling every factory, new or old, that they must purchase the same equipment to fix a problem, we would give them flexibility, reducing their compliance costs while reducing the same amount of pollution overall. I agree with the part of S. 343, Senator Dole's bill, in which we are requiring agencies to consider market-based mechanisms. We have a similar provision in the Glenn-Chafee bill, S. 1001. Principle 3. Risk assessment requirements must not be overly proscriptive and should apply only to major risk assessments. Risk assessment requirements are an important part of regulatory reform because many of the rules we want to address in this legislation relate to health, safety, or the environment. Risk assessment can help us better understand what the risks are to the public or the environment, which in turn lets us figure out how best to lower those risks. Scientists, agencies, and others have testified that it is essential that we do [[Page S 9665]] not make these requirements too prescriptive. Risk assessment is an evolving science. The last thing Congress should be doing under regulatory reform is freezing this science by laying out in excruciating detail how an agency must do a risk assessment. I believe that both S. 1001, as well as this bill, do try to strike a good balance. I must commend Senator Johnston for his leadership in the area of risk assessment. He has done a lot of work on that. S. 1001 outlines smart risk assessment principles that are in line with recommendations of the National Academy of Sciences. There are still a few problems in S. 343, however, when it comes to the specific risk assessment requirements. For example, what is exempted from these requirements and what is not? This bill states that an agency does not have to do a risk assessment for a rule ``that authorizes the introduction into commerce * * * of a product.'' I ask my colleagues, what if an agency determines that a product is unsafe and should be removed from commerce? Under this bill, the agency would have to do a full-blown risk assessment, complete with extensive peer review, before it could take a product off the market. If you want to put something on the market, no sweat. If you want to take something off the market, it is not so easy. And it will take time, a lot of time. I do not think this makes sense. Public health and safety can be harmed by dangerous products on the market. All we have to do is remember back to the thalidomide situation, for example, of a few years ago, when talking about taking products off the market. We do not want to make it more difficult. Another problem is that the peer review requirements are exempted from the Federal Advisory Committee Act. Let me state first that peer review of major risk assessments I think is absolutely essential. Scientific experts should evaluate the information put together by the agencies, and a good peer review process will ensure high-quality assessments. But how is the peer review going to be run? The way S. 343 is written now, no peer review would have to comply with FACA. FACA was set up to ensure sunshine, accountability, public input, public access--in fact, fairness to all parties involved in such Advisory Committee processes. FACA was put in to guarantee a balance of views on peer reviews, and yet FACA would not apply to the requirements for peer review under this act. The Federal Government currently uses many peer review groups, most in the fields of health, science, and technology. These are all subject to FACA. The proponents of S. 343, who now want to exempt these panels from FACA, were strong advocates of having FACA apply to the health care review panels just last August, less than a year ago. For example, the majority leader stated, quite properly in my view, that ``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.'' Senator Grassley, on the same subject, stated, ``I ask my colleagues to adopt the amendment to make FACA apply, because we ought to be doing everything in the sunshine. If we do, the mold will not grow there.'' I agree completely with both of those statements. I do not see why the peer review panels under S. 343 should be any different. Another issue about peer reviews: Do we really need to require peer review panels for every risk assessment for every environmental cleanup project? S. 343 applies risk assessment and cost-benefit requirements to all Superfund and Department of Energy cleanups that cost more than $10 million. Aside from the fact that I do not believe we should deal with Superfund in a regulatory reform bill, I am very concerned about the resources that agencies would have to use to comply with this bill. There are hundreds of DOE sites and close to 1,000 Superfund sites that would be affected by these requirements. I do not think it makes sense to require such extensive peer review requirements for each one of these risk assessments. How will the agencies ever be able to find so many panels, for instance, that are truly balanced? How much will this cost the Government? What would we gain from it? Where is the cost- benefit analysis of this approach? I think we should delete the peer review requirement for environmental cleanups. Finally, the position of those supporting the Glenn-Chafee bill is that the procedural requirements of these assessments should be, of course, open to peer review, but they should not be reviewed by the court. The courts are not the appropriate place to determine whether particular assumptions or toxicological data in a risk assessment are appropriate. The way the judicial review section is written, this is indeed a major concern. I will address that issue just a bit later. Principle 4. Agencies should review existing rules, but that review should not be dictated by special interests. Regulatory reform is not just about improving new rules and developing new techniques for addressing new problems. Regulatory reform must also address the great body of existing rules that currently govern so many activities in business, in State and local governments, and which affect so many of us as individuals. For regulatory reform to be effective, it must look back and review existing regulations to eliminate outdated, duplicative, or unnecessary rules, and to reform and streamline others. This review is required most simply because over time, many decisions become outdated. Review is also needed because of the rising cumulative burden of existing rules on businesses and individuals. For this reason, agencies should take a hard look at major rules that they believe deserve review. Of course, this process should be open for public comment so that those who are interested in particular rules can make their concerns known to the agencies. But this review should not be dictated by special interests. While I think a retrospective look at rules is essential, I do not believe in a process that would allow anyone subject to a rule to petition an agency to review a rule, which then requires stringent action by the agency to respond to that petition. That could just gridlock agencies and put special interests and the courts, not the agencies, the executive branch, or the Congress, in charge of the review. The latest draft of S. 343 uses a petition process to put rules on a schedule for review. If the agency grants the petition, it has to review the rule in 3 years. That is a very short timeframe for such matters. If it fails to review the rule in that time, the rule automatically sunsets, it becomes unenforceable. This process, it seems to me, puts the petitioner in the driver's seat, not the agencies or the Congress who passed the law in the first place.

Mr. GLENN

Mr. GLENN. I yield 5 minutes.