John Glenn

Mr. GLENN

Mr. GLENN. No, I want to complete my statement. Then I will yield the floor at that point. It also creates a process that is more prone to killing regulations than creating a thoughtful review of regulations. In addition to the peer review petitions, S. 343 has many other petitions for any interested party to challenge an agency on any rule, not just the major rule. These are yet more examples of the lawyer's-dream approach taken under this bill. Under S. 343, someone could petition for issuance, amendment, or repeal of any rule; or, amendment or repeal of an interpretive rule or general statement of policy or guidance; and, interpretation of the meaning of a rule, interpretative rule, general statement of policy, or guidance. And just to add to the confusion, S. 343 also has a separate section, section 629, for a petition for alternative compliance. Any person subject to a major rule could 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, S. 343 adds 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 the petition for alternative compliance, is judicially reviewable. It could be challenged in the courts. What a dream for the lawyers. All of these petitions and reviews add up to one of the worst parts of this bill. I think it is a formula for true [[Page S 9666]] gridlock. Agencies will have to spend enormous resources responding to each and every petition, and then they can be dragged to court if they turn down a petition. This does not come close to being real regulatory reform. This is regulatory and judicial gridlock. This is a way to keep the agencies from doing their jobs and to keep lawyers happy and extremely prosperous. This bill would make all the rhetoric about tort reform a big joke except that in this case judicial gridlock means that the health and safety of the American people could be jeopardized. Principle 5. Government accountability requires sunshine in the regulatory review process. Agencies must work to involve all interested parties in the regulatory process, from soliciting comments to disseminating drafts to ensuring broad participation in peer review. Accountability also requires public disclosure of regulatory review documents, including related communications from persons outside the Government. There can be no public confidence in Government when some can use back doors to decisionmakers. S. 1001 requires reasonable disclosure consistent with recommendations of the Administrative Conference of the United States. Over the past 25 years, the most notable regulatory reform accomplishment has been development of centralized Executive oversight of agency rulemaking. This effort, while not truly reforming the regulatory process, has had a substantial impact on the Federal regulatory process. It led to the development of agency regulatory analysis capabilities and better coordination among agencies, though the record is quite uneven across agencies. The development of centralized regulatory review has also led to more consistent policy direction and priority setting from the Office of the President, though the record here is uneven as well, due largely to partisan controversy about Presidential use of that power to affect agency decisions. Many times over the past 15 years many of us have been in the Chamber debating the use of OMB regulatory review. Much of the controversy that has dogged centralized regulatory review since it was formalized in 1981 by President Reagan in Executive Order No. 12291 revolves around public confidence in the integrity of the regulatory process. The issue has come to be known as the regulatory sunshine issue. And while the Governmental Affairs Committee has in the past been divided about how much sunshine is needed and at what stages in the process, the committee has always agreed on the need for sunshine and public confidence in the regulatory process. S. 343 has no sunshine provisions. It is not like the Glenn-Chafee bill, S. 1001. S. 343 has no sunshine provisions for regulatory review, and I believe that is a fundamental flaw that needs to be addressed. Principle 6. Judicial review should be allowed for the final rulemaking, not for each step along the way. Regulatory reform should not become a lawyer's dream, with unending ways for special interests to bog down agencies in litigation. We firmly believe in a court's role in determining whether a rule is arbitrary and capricious. S. 1001 authorizes judicial review of the determinations of whether a rule is major and therefore subject to the requirements of the legislation. Also, it allows judicial review of the whole rulemaking record, which would include any cost-benefit and any risk assessment documents. We should not, however, provide unnecessary new avenues for technical or procedural challenges that 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, they should not become the arbiters of the adequacy of highly technical cost-benefit analyses or risk assessments independent of the rule itself. I believe, the way the bill 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 not acceptable. Principle 7. Regulatory reform should not be the fix for special interests in every program. Many parts of S. 343 are very different from the bill we reported out from the Governmental Affairs Committee on a bipartisan basis and the alternative bill we introduced before the recess. In the bill before us, S. 343, several provisions are aimed at benefiting special interests or stalling particular programs. Frankly, they have no place in a regulatory reform bill that should attempt to set a fair process, fair and equal to all. First, 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. As testimony before our committee showed, 80 percent of the rules are required by Congress. It is not just the regulatory process that needs fixing. We in Congress are also responsible for a lot of these problems. Let us focus on making the regulatory process better as a whole and not a fix for special interests. Let me give some examples. This bill tries to delay Superfund cleanups. It rewrites the Delaney clause, shuts down the EPA toxic release inventory, provides enforcement relief for companies, and so on. Now, I agree that some of these are legitimate problems that deserve our attention, but this is not the place. The regulatory reform bill should address regulatory issues, not be a Christmas tree for lobbyists to hang solutions to whatever problems they may have. Let us look at some of these provisions a little more carefully. First, delays and higher costs for environmental cleanups. Every Superfund and Department of Energy cleanup that costs more than $10 million would have to go through a risk assessment and cost-benefit analysis. This is not just for activities that will be starting up, not just for new projects. It covers cleanups that are already under way. EPA and DOE will have to stop any progress they are making to go back and do additional costly analyses. This is guaranteed to slow the pace of cleanup even further, something we have all been concerned about for a long time. EPA estimates that 600 to 1,000 Superfund cleanups spread across every State in the Union would be caught in this requirement. The Department of Energy estimates that about 300 cleanups would be affected. Does this make any sense? I would prefer to spend the taxpayers' money on cleanup rather than repetitious, redundant studies and more lawsuits. To make matters even worse, these cleanups have to go through the hoops of the decisional criteria, yet another supermandate in this bill. For each $10 million cleanup, agencies would have to prove that the benefits of the activity justify the costs, the activity employs flexible alternatives, and the activity adopts the least cost alternative. Now, I and many others here recognize the need for Superfund reform, and we worked hard on that last Congress. That is where this provision belongs, under Superfund reform, not regulatory reform. If we are going to fix the problem, let us fix it right. Adding new burdens and hurdles is certainly not the right approach. Second, gutting of the toxics release inventory, the TRI. The TRI is intended to provide the public with information about chemicals being released into their local environment. This bill would fundamentally change the way the TRI works and would swamp the agency. In reforming the regulatory process, we are trying to encourage agencies to use flexible approaches to regulation and make the agencies more efficient. The TRI currently provides information to the public and encourages the voluntary reduction of toxic emissions through whatever means a company chooses to use. This program has not only provided maximum flexibility to companies, but it has also resulted in significant reductions in emissions. Since 1988, companies have reported a decrease in emissions of listed chemicals of more than 2 billion pounds a year. In this bill, we would change the standard for removing chemicals from the list. We would force EPA to perform thousands of site-specific risk assessments in a very short time. This sounds less like regulatory reform and more like make-work for [[Page S 9667]] the agency. If Congress wants to change the standard in TRI, we should do it in the context of Emergency Planning and Community Right-to-Know Act legislation. This provision has no place being in this bill. Third, repeal of the Delaney clause. You will get no argument from me that it is time to change the Delaney clause. It should have been done a long time ago. But this regulatory reform bill does not fix it. I believe this is just one more case of a very important and substantive area that should be dealt with outside the context of regulatory reform. In conclusion, I want regulatory reform, but S. 343 does not provide balanced regulatory reform. Its overall impact will be to swamp the agencies to the point of ineffectiveness, provide lots of jobs for lots of lawyers, and to make some companies very happy. I would like to work hard with everyone here, all my colleagues, to make a good, fair and truly balanced regulatory reform bill. So I hope we can address many of the issues I have raised today. I urge everyone to take a hard look at the regulatory reform approaches in the Dole-Johnston and the Glenn-Chafee bills and then ask yourselves: Are we relieving regulatory burden on industries and individuals? Are we protecting the environment and health and safety of the American people? We must work together in a true bipartisan spirit to meet these two essential goals of regulatory reform. Together we can truly improve how our Government works. Mr. President, I asked consent earlier for insertions into the Record. I will ask for one more. We have a letter that was addressed to both leaders, the majority and minority side, from the Department of Agriculture. I think it is worth including in the Record also. I ask unanimous consent that that letter be printed in the Record.

Mr. GLENN. Mr. President, I quote some from that Record, in closing, to show how some of these things can work. They address E. coli, salmonella, and some other things we addressed earlier on the floor today. In this letter from the Secretary of Agriculture, he points out some of the difficulties. He says: I am writing in regard to the effect that S. 343 would have on the efforts of the Department of Agriculture to improve the meat and poultry inspection system and the safety of the Nation's supply of food. The Food Safety and Inspection Service published a proposed rule to significantly reform the Federal inspection system by requiring the adoption of science-based Hazard Analysis and Critical Control Point procedures. S. 343 would needlessly delay USDA's efforts to reform the meat and poultry inspection system. Foodborne pathogens in meat and poultry products, such as E. coli, Salmonella and Listeria, are believed to cost the Nation billions of dollars from lost productivity, medical costs, and death. The virulent E. coli bacteria alone is estimated to cause 20,000 illnesses and 500 deaths annually. Young children and the elderly are particularly vulnerable to foodborne pathogens and therefore at greatest risk. On February 3, 1995, USDA proposed reform of the Federal meat and poultry inspection system to incorporate science into its inspection system. USDA's proposal would require the use of scientific testing and systematic measures to directly target and reduce harmful bacteria. The goal is simple: To improve food safety and reduce the risk of foodborne illness from consumption of meat and poultry products. Under the proposal, the Nation's 9,000 federally inspected slaughter and processing plants would be required to adopt science-based HACCP procedures. Targets would be set for reducing the incidence of contamination of raw meat and poultry with harmful bacteria. Meat and poultry plants would be required to test raw products for pathogens, and to take corrective action, if necessary, to meet food safety targets. S. 343 would significantly delay this essential reform by requiring USDA to establish a peer review panel which satisfies the criteria in S. 343, submit a cost-benefit analysis and risk assessment analyses to the panel, and convene the panel to review the analyses. The panel would then be required to prepare and submit a report to FSIS detailing the scientific and technical merit of data and methods used for the risk assessment, including any minority views. FSIS would have to respond in writing to all significant comments made in this report. The report and the FSIS response would become part of the rulemaking record and would be subject to judicial review provisions of S. 343. These procedures would significantly delay the essential reform effort by a minimum of 6 months. While peer review can be a useful tool to improve the rulemaking analyses, the potential benefits from a peer review of the HACCP reform proposal does not justify delaying reform of this system--a reform that is supported by all interests. Similar review has already been occurring. The scientific foundation of the HACCP proposal, in short, would have been the subject of extensive review and comment as part of the rulemaking process. [[Page S 9668]] First, FSIS published the preliminary regulatory impact analysis in the Federal Register for comment with the proposed HACCP rule. The NPRM contained a preliminary cost- benefit analysis and risk assessment which explained the assumptions regarding the risks and costs of foodborne illness to the public, the costs of the proposed rule to the regulated community, and the range of benefits in terms of reduced foodborne illness that the proposed HACCP rule would achieve. Before publishing any final regulation, FSIS will revise and finalize this cost-benefit analysis based on the comments received. Second, peer review of the HACCP proposal is unnecessary since FSIS has held at least 11 public meetings to discuss and obtain comments on all aspect of the reform proposal. Three of those meetings were two-day conferences which addressed various scientific and technical issues raised by the rulemaking. Third, the National Advisory Committee for Microbiological Criteria in Foods, which provides impartial, scientific review of agency actions relative to food safety, also reviewed the HACCP proposal and submitted comments. All comments received in connection with these public meetings have been placed in the rulemaking record. S. 343 simply adds another level of review which in this case would result in an unnecessary delay of essential food safety reform. For this and other reasons, I would recommend that the President veto S. 343 if enacted in its present form. The Office of Management and Budget advises that there is no objection to the presentation of this report to the Congress. Mr. President, I know that is a lengthy statement this morning. But I wanted to get my views in. We did not have opening statements yesterday. I think I have laid out today the major differences between S. 343, the bill before us now, and S. 1001. S. 1001 is based on the bill that came out of the Governmental Affairs Committee on a 15-0 unanimous vote, except for the three changes I mentioned, which are improvements to the bill.

Mr. GLENN. I hope people will look very carefully at these differences and, at the appropriate time, we may want to recommend or may submit as a substitute S. 1001. I yield the floor. Exhibit 1 [From the Washington Post, July 6, 1995] Regulating Regulation The Senate is about to embark on a major debate over regulatory reform. The fundamental issue is how much weight to give to costs in measuring the costs and benefits of regulation. The principal bill is sponsored by Majority Leader Bob Dole. Its backers say, we think with cause, that in the last 25 to 30 years particularly, too many federal regulations of too many kinds have been issued without sufficient regard to cost. That's partly because these costs don't show up in any budget. The politicians can impose them, and for all practical political purposes, they disappear. The legislation seeks to impose greater discipline by requiring more use of both risk assessment and cost-benefit analysis, the first to lay out more clearly the risks that each rule is meant to abate, the second to compare the expected benefits and costs of compliance. It would then require a finding that the benefits are somehow commensurate with the costs. All that's to the good; the only problem is that regulatory matters are rarely that tidy. Among much else, they often involve a great deal of scientific guesswork, and the benefits--of a cleaner lake, for example--often can't be quantified. The questions are further complicated when the winners and losers aren't the same people. Whether or not to issue a particular rule will always be in part a value judgment. The cost of compliance should be a larger factor in reaching such judgments than it has often been in the past; it should not be the only factor. That's the policy zone that this bill seeks to define. It isn't easy. The bill now forbids an agency to issue a major rule without a finding that the benefits ``justify'' the costs. Some deregulatory advocates think that's too weak a word and want the bill to read ``outweigh'' instead. The bill says that, in requiring the weighing of benefits against costs, the intent is not to ``supersede'' but to ``supplement'' the ``decisional critera'' in other statutes. Environmentalists and the administration say that's a word game and that the bill would still override the other statutes--clean air, clean water and all the rest--because the supplementary standard would still have to be met. The bill suggests in one place that courts could toss out agency actions only if arbitrary or capricous--the current standard--but elsewhere says the agency actions would also have to be supported by ``substantial evidence,'' a higher standard. Our own sense is that regulating regulation may turn out to be as hard as regulating anything else, which suggests that there's a limit to what can likely be constructively accomplished by this bill. To require as clear a statement as possible of the risks to which a rule is addressed (how serious are they? how sure can we be?) as well as the likely costs and benefits of compliance (and of rival approaches) is absolutely the right thing to do. To insist that an agency demonstrate that a rule is sensible policy--plainly, that's right as well. The question is, demonstrate where and to whom? The bill is set up to be enforced through litigation. The courts would become the arbiters of whether benefits had been shown to ``justify'' costs--but the courts are the wrong place to make such judgments. There's a better idea in a rival bill; when a major rule is issued, sent it first to Congress, which would have, say, 45 days in which to veto it or let it take effect. It's Congress, after all, that passed the laws that gave rise to the regulations. Since these are essentially political judgments anyway, let Congress also be the one, on the strength of all the studies this bill would require, to bless or block the results. That's the right way to do it.

Mr. GLENN. I think what the Secretary is complaining about is the effective date on this. Ours would not have the same time of effectiveness as S. 343. In addition, as the Senator from Louisiana will note, one of the major differences he had with S. 343 is making the record subject to judicial review provisions which could delay things in a major way, as he says at the top of the second page of his letter. I might add, the letter was not just to the minority leader, it was to both the majority and minority leaders.

Mr. GLENN. He is talking about peer review and subjecting it to judicial review.

Mr. GLENN. Of the final rule. Of the final rule only. In S. 1001, we do not permit judicial review at each step along the way, as is provided in S. 343. That is what I mentioned several times this morning. That is just a lawyer's dream, as I see it, because they can challenge at any point along the way virtually where we provide for a final rule. You can take the whole rulemaking process, and once it is ready to become finalized, to become a rule, then it can be challenged in court. Then you can have judicial review.

Mr. GLENN. S. 343 would take effect sooner and would affect these rules more, where our effective date is later.

Mr. GLENN. Well----

Mr. GLENN. Repeat your question.

Mr. GLENN. Well, what I will have to do, I answer my colleague, I would have to get a clarification from the Secretary as to exactly what he meant in some of this. There can be two interpretations of it, as there can be different interpretations as to whether judicial review is required each step along the way. That is not certain at this point. I think there are different interpretations of that. I believe that is one of the areas in which we had trouble getting language clarified, was it not?

Mr. GLENN. What happens at the end of 2 years? Two years is not much in this rulemaking thing, as he is aware. Sometimes it takes 3 or 4 years to get a rule put into effect. Two years is not a long period of time.

Mr. GLENN. At the end of that time it would sunset, is that correct?

Mr. GLENN. It took 5 years to get put into place.

Mr. GLENN. Reserving the right to object.

Mr. GLENN

Mr. GLENN. Reserving the right to object.

Mr. GLENN. I do not object.

Mr. GLENN. I suggest the absence of a quorum.

Mr. GLENN

Mr. GLENN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GLENN

Mr. GLENN. Mr. President, I ask unanimous consent that Carolyn Clark, a fellow on Senator Paul Wellstone's staff, be granted the privilege of the floor during the debate and vote on S. 334, regulatory reform bill.

Mr. GLENN. Mr. President, I suggest the absence of a quorum.

Mr. GLENN. Mr. President, the majority leader was correct. We have checked on our side of the aisle. We will be glad to accept this amendment. I do not know whether there will be other amendments to perfect this same idea here a little bit further on or not, but I think this is acceptable. I would be glad to accept it on behalf of our side.

Mr. GLENN. Could we have order?

Mr. GLENN. Mr. President, I move to reconsider the vote.

Mr. GLENN. No amendments.

Mr. GLENN. That is correct. We thought there would be one, but you are looking at it. We will have another one ready in the morning.