John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Will the Senator yield for a question?

Mr. JOHNSTON. Mr. President, I simply wanted to tell the Senator that I agree with him that on the 180-day period on the emergency situation, the period is too short. We are requesting --I put in a request to the other side of the aisle that we extend that 180 days to 1 year. I think your suggestion is a good one and an appropriate one, and we will deal with that separately. That does not concern this amendment at this point.

Mr. JOHNSTON. Mr. President, I invite the attention of my colleagues, particularly the Senator from Massachusetts, and the minority leader, if he is listening on his squawk box, and others, to this amendment, because it fixes the problem. The problem, Mr. President, was well pointed out by the Secretary of Agriculture in his letter to Senator Daschle. What he said, with respect to this ongoing HACCP rulemaking, is that affects the 9,000 federally inspected slaughter processing plants in this country; that they have virtually completed a rulemaking; that that rulemaking has a cost-benefit and has a risk assessment that has been peer reviewed, and it is ready to go into operation. The Secretary says we should not have to go back and do that over again. It would give us a 6-month delay. A legitimate problem. Now, what this amendment does, Mr. President, is fixes that problem, not only with respect to HACCP, but with all other Federal agencies, because it says that where there is a final rule, which is substantially similar to the proposed rule, where a risk assessment for the proposed major rule has been carried out in substantial accordance with section 633, and a new risk assessment for the final rule is not required in order to respond to comments received during the period for comments on the proposed rule, the head of the agency may publish such determination along with the final rule in lieu of preparing a new risk assessment for the final rule. So that, in other words, if you have already done your risk assessment, in substantial compliance--not exact compliance-- substantial compliance of section 623, which it is my understanding that that risk assessment has been carried out, you are exempt, not only for HACCP, not only this agency, but for all agencies. Now, if that is not absolutely clear with respect to HACCP, let me give the clincher. The next paragraph, notwithstanding any other provision, if your notice of proposed rulemaking was filed before April 1, 1995, you ``shall not be subject to the provisions of this subchapter or subchapter 3 except for section 623.'' What that means is, if you have your notice of proposed rulemaking out, prior to April 1, as they did in agriculture, with the HACCP rules, you are exempt from everything except the petition process and the look-back. That means the rule will go into effect as soon as proposed. It will stay in effect. Now, if anyone wants to petition, what has to be done in order to get a petition granted, is to bear the burden of establishing, using the words of the statute, ``that there is a substantial likelihood that you would not be able to meet the standards of section 624.'' What are the standards of section 624? That the benefit justifies the cost, and that you have used the least-cost reasonable alternative that complies with the statute, unless considerations of health, safety, the environment, require a more expensive alternative, or unless scientific or data uncertainties require a higher standard. Mr. President, if you are able to show that, if the petition is granted, only then do you do the risk assessment and cost-benefit analysis, only then do you have a new rulemaking, and there would be 3 years, plus an extension of 2 years as provided, a total of 5 years, in order to complete that process. In the meantime, the rule is in effect.

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

Mr. JOHNSTON. What would happen is the rule goes into effect. If you feel that that rule--the benefits do not justify the cost, and can show a substantial likelihood that that is so, then you could petition. If the agency agrees with you, then they would put you on the schedule for having a risk assessment and a cost-benefit analysis. You do not throw out the rule in the meantime. You simply go through the scientific procedures.

Mr. JOHNSTON. That is just not true.

Mr. JOHNSTON. I did not admit that.

Mr. JOHNSTON. What Senator Daschle wants is to specifically exempt this rule, the HACCP rule, from any consideration of cost-benefit analysis or risk assessment. We oppose that because we believe that any rule that is--HACCP will go into operation. But if someone can show that HACCP was not properly done and that it cannot meet the cost-benefit analysis, that the benefits do not justify the cost, then all we say is that you can deem the scientific panel, get the best science, and do it right, but the rule stays in effect in the meantime. There is not a danger of will rules repeal, as if people are not going to be protected. There is a likelihood that if they have not done it right, they would have to do it right. Now, what is wrong with putting science in control, if they have done it wrong in the first place? What is wrong with that?

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. Mr. President, there is no answer to those that say the bill goes too far, it protects special interests. We are dealing with a technical amendments bill that involves a lot of provisions. You cannot answer an argument that says it goes too far and it enshrines special interests. It does not. The Senator has not shown me where it does. All I am saying is that this rule goes into effect. By the way, the Senator from California, I believe, is a cosponsor of the Glenn substitute. Did the Senator know that the Glenn substitute would have the very effect that the Secretary of Agriculture complains about? Under the Glenn substitute, you would be required to go back and do a cost-benefit analysis because it has not been done in accordance with what the Glenn substitute says. We get this micromanaging of this bill where they ``fly-speck'' our bill and look at it and show--find ghosts where none exists, and then they propose legislation that has the exact same fault, sometimes worse faults. But, that is fine.

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

Mr. JOHNSTON. We have changed it right now.

Mr. JOHNSTON. Mr. President, again, we have this problem on this bill that the opponents of the bill will not take yes for an answer. [[Page S 9750]] Secretary Glickman writes a letter and says, ``We have a problem, that we have gone through this extensive rulemaking, we do not want to have to do it over again.'' We say, ``Yes, Secretary Glickman, you have a problem. You should not have to do it over again. Not only should you not have to do it over again, but nobody in the Federal Government ought to have to do it over again.'' We proposed two fixes. If you started your rule prior to April 1 with a notice of proposed rulemaking, you are exempted. Or, if you have already done it and it is in substantial accordance with the section, you do not have to do it again. On both scores, this proposal for safe meat and E. coli, about which I am just as concerned as any member in this body--look, to say we are not concerned about health because we want scientists to do it right is to turn logic on its head. It is to turn the argument 180 degrees around. It is because we want it to be done right that we propose this bill. We do not want to have to do it over again. We do not want to delay. This amendment fixes the problem. Now, the reason we oppose the Daschle amendment is, in effect, what Senator Daschle says; citing the same problem, he says, just exempt HACCP altogether from these requirements. Well, you could come along and say, Well, this rule or that rule involves health or safety and it ought to be exempted. Mr. President, we are not diminishing safety by this bill. To the contrary, we are requiring that the benefits ought to justify the cost, a very simple proposition. Why do we propose that? Because, across Federal agencies, we have seen terrible examples of waste, ignoring our own scientists, not even knowing what regulations cost, dealing with risks that do not exist. With respect to this clean meat inspection, inspection of poultry houses, inspection of slaughterhouses--that regulation is going to go into effect under the second-degree amendment. We have fixed the problem. I wish the opponents to this measure would at least acknowledge that we are fixing the problem and not give us these arguments like: Oh, this is a special interest bill. Oh, you want dirty meat for your children. Mr. President, it is just not true. Let the opponents to this measure speak to this measure. Do not speak to something that is irrelevant, like whether special interests are being taken care of. This is not a special interest. This second-degree amendment is proposed specifically because the Secretary of Agriculture said he had a problem, and it fixes that problem. If there is another problem, let us deal with that in a separate amendment. We have had over a hundred changes accepted to this bill already. It is a tight bill. It is a good bill. It is a workable bill. And this amendment makes it better and I hope my colleagues will accept it. Mrs. BOXER addressed the Chair.

Mr. JOHNSTON. Mr. President, will the Senator yield?

Mr. JOHNSTON. Now will the Senator yield on that point?

Mr. JOHNSTON. Does my friend from California understand my amendment allows the E. coli rule to go forward the same as the Daschle amendment does?

Mr. JOHNSTON. Yes, it does.

Mr. JOHNSTON. If I may explain very carefully----

Mr. JOHNSTON. Now, does the Senator understand--let us see where we agree and disagree.

Mr. JOHNSTON. Do you also understand that, as far as the sunset provisions, those are only rules that the Secretary himself will pick out? In other words, you do not sunset all rules, it is only such rules as he picks out for reexamination? And that is only if Secretary Glickman says he has to go redo his own work. Does my colleague understand that?

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. Was the Senator aware of the amendment which was accepted yesterday, the one which was cosponsored by Senator Levin, which specifically says that the bill does not override the requirements of any environmental law?

Mr. JOHNSTON. All requirements of laws including environmental safety and health laws.

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. Is the Senator familiar with provisions of the Dole- Johnston bill now before the Senate which state that the head of an agency can choose a more expensive alternative if nonquantifiable benefits to health and safety of the environment make that appropriate and in the public interest?