John Glenn

Mr. GLENN

Mr. GLENN. I would not say that exactly at this point.

Mr. GLENN. Will the majority leader yield? One point I would like to make, on June 28 we gave a list of 9 major concerns we had and 23 minor ones. We were told at that time that your side would get back to us as fast as possible. We have been working through one or two--or a few of these things here today, but we have not had any answer to this. We were told that would be addressed. This is our blueprint for what we thought would make the thing acceptable. Until we can get back an answer to some of these things, I think it is going to be difficult to move ahead too fast.

Mr. GLENN. That is what I just said.

Mr. GLENN. I would like to address this again. What we thought we were going to have is an answer to this whole package. That was the way it was originally presented. I know we dealt with a couple of these items here, but we would much prefer to see how many of these things we could get through as a package. If we could get an answer on some of these things, that will certainly help.

Mr. GLENN

Mr. GLENN. Or you are going to get people locked in on this vote.

Mr. GLENN. Mr. President, I know this has been the subject of debate on the floor--not publicly but among different Members. I wonder if we can have a brief explanation. We only have a few minutes before the vote.

Mr. GLENN

Mr. GLENN. For a parliamentary inquiry? I wanted to straighten out the time. It was my understanding the time, starting at 2 o'clock, was to be divided equally among proponents and opponents of the bill. The Senator from Michigan--it was my understanding the time so far, the time of the Senator from Utah, had come out of the time of the Senator from Michigan? Is that correct?

Mr. GLENN. Will the Senator yield----

Mr. GLENN. Then, Mr. President, something has to give here because we were supposed to have a certain time set aside for Senator Nunn, which I believe was 2 hours--2 hours for Senator Abraham and 2 hours for Senator Nunn; is that correct?

Mr. GLENN. Well, I say to my friend from Michigan that this is an enormously important position in that--I believe I state this correctly--all the rules and regulations being promulgated throughout Government are required to be submitted to SBA and be reviewed by SBA under reg flex, the Regulatory Flexibility Act. So everything that is going to occur in Government in the regulatory field is submitted to SBA specifically now, whether it is intended to cover big corporations, small or private businesses, individuals, or whatever. They, in effect, get a crack at them to make their comment. [[Page S 9620]] This office of advocacy is the organization within SBA that looks at those. And so the recommendations that would be made to OIRA are potentially enormous in scope. All the rules and regulations promulgated by Government would have to go through that chain and could be kicked up to OIRA for whatever consideration they wanted to make. To take that out from under them--at least the oversight or the coordinated action of the administrator of SBA--is a mighty big step to make, and a mighty big important responsibility to give to that one person, whoever he or she might be in that office of advocacy. So I think it would be better if it went in the other direction. We are still checking with some of the people interested in this on our side. We are way over on our time. Mr. President, I suggest the absence of a quorum.

Mr. GLENN. I would think we would get much more broad support if it had that arrangement in it. If this is such an unusual procedure, to say we go down within an agency and say we give that person responsibility for taking the basic function of that agency and making a review necessary by OIRA, or whatever else it might be--in this case OIRA--without the approval of the agency head--now, there are only two other places in Government that I am aware of where we do that. One is with the inspectors general, and we provide them considerable leeway. In fact, we require the inspectors general not only to report to their agency heads, we require them to give us those same individual reports because we feel if the IG's are so important in the work they do, that we give them specific authority to report outside the chain of command to the appropriate committees of Congress, in addition to reporting to their agency head--not to bypass completely, but in addition to reporting to the agency head. The other place we do that is in the Chief Financial Officers Act, where the chief financial officers are required, by law, to report not only to their agency head but also to the appropriate committees of Congress. Now, those are the only cases I know of where we authorize people, or require people, that if they want to take action, they are authorized to go outside the purview and outside the views of, and maybe the wishes of, their agency head, and do something that the agency head might not agree with. So I think there is that problem. I would feel more comfortable, I guess, if we had the agency head required to be consulted. And if the report was still to go on to OIRA and the agency head objected, that reasons why the decision was made to go to OIRA over the objection of the agency head were made part of that report to OIRA, I do not know whether that was considered or not. But it seems that that would be a more normal procedure for what we want to do.

Mr. GLENN. I say to my colleague that I would certainly hope that in every case--as he said, the normal procedure would be that there would be consultation with the administrator. Would it be acceptable to the Senator from Michigan to make it consultation and approval of the administrator before this matter was brought to OIRA?

Mr. GLENN. Mr. President, you say time is not controlled?

Mr. GLENN. Mr. President, parliamentary inquiry. The discussion we had a little while ago resulted in no agreement. Is that correct?

Mr. GLENN. I know they were preparing a unanimous-consent request to that effect. We do not have that yet. But it was my understanding that those were the rules we were operating under. I just wanted to make sure everyone agreed to that.

Mr. GLENN. Mr. President, I want to make some remarks on the bill itself and then some remarks specifically on the amendment by the distinguished Senator from Michigan. I firmly believe that this is one of the most important bills that we will take up this year. That probably comes as a surprise to a lot of people who think regulatory reform is pretty dry, arcane, and is about like watching mud dry, as far as interest goes. It is what we termed in the past a MEGO item, ``my eyes glaze over'' when you bring it up. That is about the interest that it will generate with a lot of people, because it is not debating B-2 bombers or the M1A2 tanks, or something like that. It deals with the nitty-gritty of rules and regulations, how they get published, why they are necessary, and so on. Lest anyone think we have a lot of bureaucrats just sitting over on the other side of town dreaming up rules and regulations to put out on their own volition, that is not the way these things happen. We pass laws in the Senate and in the House of Representatives and we send them over to the President. The President signs them. Then they go to the agencies to have the rules and regulations written that implement them, that let them be put into effect, that make them practical so they can go out and affect everyone, literally, in this country--businesses, organizations, individuals, families, children, elderly. Everyone is affected by many of these rules and regulations. If we did a better job in the Congress, I think perhaps we would find less necessity for rules and regulations over in the agencies and the Departments. If we want to see the major problem area, we ought to look in the mirror, because what we do is too often see how fast we can get legislation out of here. We do slapdash work on it here, send it over and then we are somehow surprised that the agencies and the people doing the regulation writing do not do a better job, and then we are all concerned about why they did not do a better job when we did not do a good enough job in directing them in what they are supposed to do. Having said that, some 80 percent of the regulations written are required to be written by specifics of legislation passed in the Congress. So we bear heart and soul a lot of the blame on this thing. But the importance of rules and regulations cannot be denied. It is what makes them applicable across the country. Let me say this. I do not think there is a single Senator that I know of who thinks we should just go along with the status quo. The administration started a review of this whole area 1\1/2\ years ago, and they already cut out a lot of rules and regulations. They are in the process of doing more of that right now. So the Senate is interested, the House of Representatives is interested, the administration is interested, and it is that important. We are united on the need to make some changes. So this is not a partisan thing across the aisle on the need. The question is how we go about this. Let me go back a few years to 1977. The Governmental Affairs Committee, of which I am a member--I was not chairman at that time. Later on I was chairman of the committee for 8 years. Senator Roth chairs the committee now. But back in 1977, we had what was really a landmark study. It was a landmark study on regulatory reform. It resulted in OMB and OIRA changes, the establishment of processes there. It was an open process. So we had an interest through the years on these matters. In this year, we had four hearings on the bill in committee. It was bipartisan in support in that committee. We deliberated, we considered everything everyone wanted to consider, and we had a 15-0 vote when that came out of committee. There was agreement on it, and it was a bill of balance. I think we focused on many of the very central issues, and I will get to those in just a moment. But the bill that we have as S. 291 that has not been introduced here--of course, we are dealing with S. 343, the bill proposed by the majority leader--but that bill we passed out of committee, the Roth bill--and the bill which we would have as an alternative, S. 343, now is basically S. 291 that came out of committee, with just three changes. Those three changes are: A major rule would be defined as one having a $100 million impact per year. No. 2, if an agency fails to review the rules within 10 years, there would be no sunset. In other words, an administrator in an agency could not deliberately let it run beyond the time period and automatically have laws and rules sunset without congressional action. And No. 3, the difference between this and S. 291, as originally voted out of committee, is there is a simplified risk assessment process to comport with the National Academy of Sciences guidelines on risk assessment. Those are the only three differences. This is a bill that was voted out of committee 15-0. We find ourselves in a position where we have several differences between what was provided in the bill out of committee and what the majority leader has proposed with S. 343. No. 1, the decision criteria, the test whether an agency can promulgate a regulation. S. 343 proposes a least-cost basis. The bill voted out of committee proposed a cost-effective basis. There is a big difference between least cost and cost effective. [[Page S 9612]] Another area of difference is that of judicial review. Under judicial review there are some major differences as to what would be judicially reviewable; in other words, what you can file suit in court on. Another difference is the $100 million threshold. S. 343 has a $50 million threshold, which drastically increases the number of bills that would have to be considered. Another difference is the petition process. Another is the sunsetting, as I mentioned a moment ago. Another is how we do risk assessment. The effectiveness of regulatory flexibility is another. If the agencies have done their job or have not done their job. The lack of sunshine, openness, a requirement for openness in our legislation. Of course, there is the area of specific interest fixes, and whether we, as proposed in S. 343, knock out Delaney or toxic release emissions requirements, inventory requirements that every community should have knowledge of. These are some of the differences in the legislation between what we voted out of committee and the legislation the majority leader brought to the floor. Let me talk about the cost-benefit analysis as a tool and not a statutory override. Now, there is substantial difference of opinion on this. Regulatory reform, we feel, should build on our health and safety accomplishments, while applying better science and economic analysis. Regulatory reform on its own and without any other consideration should not override existing environmental safety and health laws. There seems to be a difference here. But in discussions about S. 343, there has been a refusal to include language that in the event of a conflict between a law--the Clean Air Act, for example--and the new standards in this bill that the law would govern. That is a major difference. I know we say we are in agreement on that. But the language that would spell that out very specifically has been difficult to come by up to now. There are other statutory overrides in this bill, like the sunset of current regulations if an agency did not act to rewrite or renew them. There would be 10 years to review a petition process, and if it was not reviewed, the bill, according to S. 343, would sunset, would go out of existence. There is also what could be considered a rewrite of Superfund and the Reg Flex Act. What they have in S. 343 is if the cleanup is worth more than $10 million, or will cost more than $10 million, there needs to be a new analysis of even work in process. I know there is a lot of work going on. But it is my understanding that that is still the intent of the bill. Under the cost-effective regulations, regulatory reform should result in regulations which are cost effective. S. 343 requires agencies to choose the cheapest alternative, not necessarily the one which provides the most bang for the buck. Here is an example: If a $2 increase in the cost of a bill would result in the saving of 200 lives, to make a ridiculous example, the least cost would not permit that extra $2 expenditure. Another area of interest: No special interest fixes. Congress should enact reforms of the regulatory process, not fixes for special interest. S. 343, as brought to the floor, rewrites the toxic release inventory which gives people the right to know what toxic substances have been released in their communities. It repeals the Delaney clause against additives in cosmetics with a substitute. It delays and increases costs of ongoing Superfund cleanups and prohibits EPA from conducting risk assessments to issue permits to even such things as cement kilns and others allowing them to burn hazardous waste. So those are some of the areas. We have others. Better decisionmaking, not a regulatory gridlock is what we are after also. Regulatory reform should streamline rulemaking. It should not just be a lawyer's dream opening up a multitude of new avenues for special interests to tie up the process. The bill, as brought to the floor, allows courts to review risk- assessment and cost-benefit procedures and to reopen peer review conclusions. It creates numerous petition processes for interested parties. These petitions are judicially reviewable and must be granted or denied by an agency within a time certain and these petitions will eat up agency resources and allow the petitioners, not the agencies, to set agency priorities. Now, a very major difference also is the reasonable threshold. The new requirements should be applied wisely where the cost of conducting the analysis are justified by the benefits. But S. 343 sweeps into the new process an unwarranted number of regulations because it would, I believe, flunk its own cost-benefit test, because it provides for a threshold of $50 million, where the bill we brought out of the Governmental Affairs Committee, that Senator Roth brought out, has a $100 million threshold, which means even then somewhere 400 to 600 reviews are going to have to be conducted per year. And cutting that $100 million standard in half, with no evidence that the extra taxpayer dollars needed to comply would be spent effectively. In other words, how many can we really do effectively? That is the question. I think if we went to the $50 million threshold, we would probably find the agencies being swamped. We are going to spend a lot of dollars making no progress, as far as the accomplishment of regulatory reform. Last, but certainly not least, is sunshine. Regulatory reform should be open and understandable to the public and regulated industries. It should be sunshine in the regulatory review process. S. 343 as brought to the floor has no sunshine provisions to protect public participation and prevent secrecy in regulatory review. I can say this, going back a few years, when we had the Council on Competitiveness and a few things like that, we certainly need the sunshine provision. I think most people here would probably agree with that. Mr. President, the rules and regulations that we are talking about involve every child in this country, every family, the milk you drink, the meat you eat, transportation, safety, water, air, all of these are things that will be affected by this legislation. That is the reason that I say it will be one of the most important bills that we bring up this year. I do not want confrontation on these things. I think the press has continued to play it mainly as confrontation. I do not like that, particularly because we are talking about working out cooperative methods and working out compromise on this so we can get a good bill for the whole country. We all stand here united on the need for regulatory reform. So I think it is important that we try and work as many of these things out as possible. Now, with specific regard to the proposal made by the Senator from Michigan, I know his original proposal was one that I was prepared to oppose. But he has modified that proposal. I think after we have checked with some of the people involved on our side or wanted to be involved on our side, we may be able to accept the amendment over here. The amendment, as originally proposed, while well-intentioned, I think, would have added to special interest lobbying, would have delayed Government decision and frustrated effective regulatory reform. The amendment would have allowed a single official, and not even the Administrator of SBA but the chief counsel for advocacy, to determine any rule, any reg, to be put on the list for agencies. Agencies would have been forced to put these rules on just with one person's say-so. And that could have been any existing rule he or she might have chosen. I did not favor that approach to it because I think we had adequate protection in the bill in S. 343 and S. 291 both to cover that. We had adequate procedures that would have covered that without giving one person, in effect, what would be a czar's authority over all rules and regulations which already have to be reviewed for small business under the Regulatory Flexibility Act, which is required for agencies to evaluate the impact of proposed rules on small businesses and to consider less burdensome, more flexible alternatives for those businesses. Both the Glenn-Chafee bill and S. 343, the one before the Senate, also strengthen the Regulatory Flexibility Act by providing judicial review of agency regflex decisions. [[Page S 9613]] I think that is the right thing to do. I think both bills cover that. Trying to tighten up regflex is one thing, but creating a whole new set of powers for the Small Business Administration would be quite another thing. I know the Senator has modified his proposal to say that now, instead of the chief counsel for advocacy at SBA being able to determine on his or her own that these things must be considered by the particular agency or department involved, he has said now that first they have to recommend these up to the Office of Information and Regulatory Affairs in the Office of Management and Budget, which is the office OIRA, that normally passes on these things. It is our understanding that would be an adequate stopgap, an adequate monitor, a governor, if you will, or a sieve, to sort out what might be frivolous or might not be frivolous. It is my understanding that the OMB, then, in the amendment as now proposed, would be able to stop that procedure if they wanted. I ask my distinguished colleague from Michigan if that is his intent now, that once the SBA counsel has submitted this to OIRA, we could turn it down and that would be the end of it.

Mr. GLENN. What would be the timing on the vote this afternoon if we agreed to the proposal made by the Senator from Utah?

Mr. GLENN. Mr. President, reserving the right to object, would this then mean that the time certain that was established for a vote later this afternoon at 5:15 would have to be set back in accordance with that?

Mr. GLENN. Mr. President, I suggest we proceed. We are wasting a lot of time on this. Let us just proceed. If we need extra time at the end, which I doubt that we will, then we can take appropriate action at that time. Otherwise, let us proceed and hope we can hit the 3 o'clock deadline anyway, if that is all right with the Senator from Michigan.

Mr. GLENN. I was curious as to why the Administrator of the Small Business Administration was not the authority that would pass on these things to OIRA, or make the decision, rather than taking a subordinate officer and, in effect, elevating that officer for a greater authority than the Administrator has in being able to send things off for review at a different place.

Mr. GLENN. I thank my colleague. As I said earlier, at the appropriate time, after I have had a chance to check with a number of people on our side interested in the legislation, we may be able to accept. I, personally, think it is OK now as far as putting OIRA on as sort of a governor or place in which these can be judged before they would be sent to a department or agency. I would personally be prepared to accept it. We would like to check with a few more people. I yield the floor.

Mr. GLENN. Mr. President, will the Senator yield for a question?

Mr. GLENN. I ask my friend from Louisiana. On this least cost versus cost effective, he talked about uncertainties. What if there are no uncertainties, if the science is good, everybody is agreed on that, and if all matters are quantifiable, lives may not be monetizable in dollar value but they are quantifiable on lives to be saved? I believe the way S. 343 is written now, even if only a $2 or a $20 expenditure would save 100 lives, you still have to go with the least cost unless there is some uncertainty about the scientific data. Is that correct?

Mr. GLENN. It is a key point. I think it is indicative of the kind of debate we are going to get into here on some of these specifics, the meaning of words and so on. It has to be something that will hold up in court, that is understood by the courts. And that is a real major problem on this whole bill. We spent days and many hours going through some of these word differences. This is one example of it that is going to be debated further as we get into this bill. I know basically we are on the Abraham amendment now. Parliamentary inquiry. Does that run out at 3 o'clock?

Mr. GLENN. Mr. President, I know we have run over our time for this particular amendment, but I believe there is a small meeting still going on. I ask my distinguished colleague from Michigan if he had considered having the reporting authority for small business concerns be the Administrator of the Small Business Administration? It is a little unusual to go down somewhere in the organizational chart of any agency or department and give a particular person the authority, no matter what their title or what their normal responsibilities are, to bypass all other rules, regulations, and administrative procedures for that particular department, to bypass the administrator of their department, even though the administrator might not agree with what he is going to propose, and bypass within the depths of an agency the administrator and go directly to OIRA. Would it not make more sense if we really did this through the administrator as the first step on this process? Otherwise, you could come up with a situation where you have an administrator who really does not agree, and maybe for some very good reasons, as to the actions that will be taken by the counsel for advocacy. I ask, was that considered? If that was turned down, what were the reasons for not going that route of having the administrator represent his agency?