John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. No. I say the answer is no for the third time. And the reason is that it is not narrowing. It is expanding, and it is ambiguous.

Mr. JOHNSTON. There may be a court interpretation of that. But you have under your amendment a review of subsection (d), ``without observance of the procedure required by law.'' According to what you have said, you are going to review the procedure because that is what subsection (d) says. We do limit under our amendment. Our amendment is limited specifically to whether the final agency action is ``arbitrary and capricious.'' That is much narrower than that which you state. It is at least ambiguous.

Mr. JOHNSTON. That is correct.

Mr. JOHNSTON. I think it does not narrow. These two proposals, I believe--you have to read them In pari materia. What I get from this last sentence is that this is a review. You have ``judicial review of the agency action.'' I submit to you that review is under section 706 of the Administrative Procedures Act. If it is not, tell me under what standard it is reviewed.

Mr. JOHNSTON. ``Individual,'' but you look at the requirements of the chapter. Would not that be fair?

Mr. JOHNSTON. In the first place, I think it is ambiguous. What are ``particular requirements''? That to me means a de minimis test. Words are supposed to mean something. It means something different than ``conformed to the requirements of this chapter.'' So when it says ``particular requirements,'' I would assume that means that you need not deal with the technical----

Mr. JOHNSTON. All right. How does this differ from what we have said?

Mr. JOHNSTON. Let me return to this in just a moment. I will engage you when I finish these two other things. My friend from California says that the emergency regulations here are not clear, that they are ambiguous. The first time I heard that raised--honestly, to say that you cannot deal with the medfly, that somehow that escapes health, safety, or the environment, Mr. President, if medfly is not included in the environment, I do not know what is; or under health. I mean we are talking about something that could destroy all the fruit in California. And that does not have anything to do with health? Who are these people over in the Agriculture Department telling you that fruit does not have anything to do with health? I mean what kind of contorted, convoluted logic, to say that fruit does not have anything to do with health? I mean it is clear, Mr. President. I mean these people who oppose risk assessment are looking for ghosts, and finding them everywhere. And you find one ghost, you say what does it take to fix that ghost? You are given the language they want, and they come back and say, ``Ah ha. But that language is ambiguous.'' The supermandate language which was unnecessary in the first place which said for a second time in words that the opponents suggested and know it is somehow ambiguous, I mean this is a no-win situation. We have to face the fact that some people are opposed to risk assessment. Now my friend from Michigan finds ambiguity in this. I now have the Glenn-Chafee language here. I would like to ask him how this last language differs from our language when our language says that you may consider final agency action to determine whether it is arbitrary and capricious. You did, by the way, have in the Record the risk analysis and cost-benefit, did you not? Is that required?

Mr. JOHNSTON. They do not say why it is. I must say that this letter from the Justice Department gives me real pause to consider what the quality of our people in the Justice Department is because there is no ambiguity here. They simply say it. They make an unsupported statement and anybody can say anything. But you cannot read out this the word ``solely.'' They just read it out. They go on to say--you will notice that the letters says not that ``solely'' is not there but that it will be the subject of litigation. It is like when I used to practice law, Mr. President. Somebody would come in and say, ``Can I sue somebody about such and such?'' And I would say, ``Sure. You can sue. But the courts are not going to grant the subject of your suit.'' You know, you can summons up the witches from the briny deep. But will they come? No. They will not come. They will not. Alleging something that is clear in the four corners of the statute does not mean it has any substance. If they are going to sue on that, let me tell you. They are going to sue on Glenn-Chafee because Glenn-Chafee is ambiguous. Let me finish these two other points, and then I want to ask a question.

Mr. JOHNSTON. That is correct.

Mr. JOHNSTON. I will.

Mr. JOHNSTON. No. They have already had--first of all, they have had 1 year after the expiration--I mean after the effective date of the act. They have had 3 years minimum initially, plus they have had these 2 years--that is 6 years. They cannot extend it beyond 6 years. But they can make such orders to continue the rule as is necessary. Now, my friend from California says the supermandate language is ambiguous. For the life of me, Mr. President, the supermandate language we said was unnecessary in the first place because the bill is clear and I believe it is. But at the behest of all the people who said we have to have supermandate language, we adopted the language using their word. ``Override'' was not our word, it was the word of others. It says, now, ``nothing in this section shall be construed to override any statutory requirements including health, safety and environmental requirements.'' For the life of me I do not know what you do to please the opponents of this provision. We first accept the principle and put it in the bill, and it is clear. But, oh, no, they find an ambiguity. We come back and put in the precise language, the override language that they want, and it is still not good enough. Mr. President, what can we do to satisfy the opponents of this bill? If that language is not good enough--tell me what is. It is incredible. Judicial review language, Mr. President--my friend from California says that you ought to have review of the final agency action to determine whether it is arbitrary and capricious and that is the only purpose for which risk assessment and cost-benefit can be considered. I invite my friend from California to look at the language. That is exactly--exactly what it says. If you can find an ambiguity in these words we will change them, because there is no ambiguity in those words. There is a lot of ambiguity in the Glenn substitute and I can show you exactly where that ambiguity is. But there is no ambiguity in that. It adopts exactly and precisely what the Senator says. Those studies can be used solely--``solely for the purpose of determining whether the final agency action is arbitrary and capricious or an abuse of discretion.'' Where is the ambiguity in that language? I am at a loss to understand. I can show the Senator where the ambiguity in the Glenn-Chafee language is, but there is clearly not any here.

Mr. JOHNSTON. I think I have answered that. Let me move on.

Mr. JOHNSTON. The court has had a chance to review this and has given such orders as are necessary, which might be--I guess what the court would order is a schedule. Public comments to be completed by such and such a time. Final rule by such and such a time. They have full and complete discretion. There may be some rules that, upon review by the court, should terminate. But it is not automatic. You have a chance to go to court to get that rule extended.

Mr. JOHNSTON. It is quite clear. It is a low barrier. You have to show the rule is likely to terminate, the agency needs additional time, that terminating the rule would not be in the public interest, and that the agency has not expeditiously completed its review.

Mr. JOHNSTON. But now if the Senator will look over on the previous page, subsection (3), An interested party may petition the U.S. Court of Appeals for the District of Columbia to extend the period for review of a rule on the schedule for up to 2 years, and to grant such equitable relief as is appropriate. To be sure, if nobody cares, if the agency head wants the rule to terminate and the whole world wants it to terminate and nobody cares, nobody files a petition--yes. But that is a whole lot different from saying that this thing automatically sunsets.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. You provide for the court to use section 706 of the Administrative Procedure Act in order to give the needful review. We provide that the court of appeals grant such equitable relief as is appropriate. If anything, ours is broader than yours. The point is, it is not an automatic sunset. It is just not. It may sunset, that is if everybody wants it to sunset. But if anybody cares, they can petition the court.

Mr. JOHNSTON. There is virtually no difference between this 2-year extension provision of the Dole-Johnston amendment and in the Glenn- Chafee substitute.

Mr. JOHNSTON. If everybody wants the rule to sunset it can sunset. You can terminate a rule today.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. No, they do not have to do a cost-benefit or a risk assessment if their notice of proposed rulemaking was out before April 1. It is just as clear as it can be. Let me finish answering these questions from the Senator from California. My friend from California says there is an automatic sunset. If she would look at the section on page 33, that is section 623, it provides that, if a rule is likely to terminate and the agency needs additional time, and terminating the rule is not in the public interest, and the agency has not expeditiously completed its review, you not only can get up to an additional 2 years, but you can get a court order to tell them to complete the rule or to do other needful things. I do not know where this automatic sunset comes from. It is not an automatic sunset. It is just not. And the words are clear.

Mr. JOHNSTON. They are subject to a petition process, but that does not--the Senator said that they are ready to finalize, and they have to start over again, the rule would go into effect.

Mr. JOHNSTON. Mr. President, I have given the answer to that question. I will give it again. It is because the definition of section 621 includes both quantifiable and nonquantifiable and because life is, by its very nature, not quantifiable in value, although we may count up the number of lives. Point No. 2, my friend from California says the petition process would open up 80 to 100 new reasons why attorneys could challenge rules. Not so, Mr. President. There is one single standard, which is that you must show a substantial likelihood that the existing rule does not meet the standards of this bill, which means that the benefits do not justify the cost. It is one standard. You have one chance to do it in the 180-day period. It is just as clear as it can be. I do not know where the 80 to 100 new reasons--I suspect that there are some lawyers who were told that they are against this bill, and go make up reasons, and they did not do a very good job of making them up. Point No. 3--I hope my friend from California is listening--commuter airlines, 40 people killed, they are ready to finalize the order, and they would have to start over. Now, Mr. President, last week we put in an amendment specifically to deal with this question. If the notice of proposed ruling making was out by April 1, they are not covered by these requirements--not covered by these requirements. We had a long debate, and we accepted the amendment. Now, Mr. President, these commuter airline proposals were out long, long before April 1. Now, does my friend from California understand that? Did someone say that amendment does not cover this?

Mr. JOHNSTON. Generally for the life, for the 20th or 30th time, the value of the life is not quantifiable by its nature.