John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. I thought the Senator just said it was impossible to consider nonquantifiable benefits.

Mr. JOHNSTON. Is the Senator requesting that I withdraw the second- degree amendment and vote up or down on the Daschle amendment?

Mr. JOHNSTON. How does the Senator suggest that we legislate with respect to----

Mr. JOHNSTON. I would invite my colleague to read the language which we have put in. It provides that benefits include all quantifiable and nonquantifiable benefits. So they are all brought in. I think it is really very clear. I invite the Senator to read that.

Mr. JOHNSTON. Will my colleague yield at that point?

Mr. JOHNSTON. We just had a discussion about benefits and how the definition of ``benefits'' in the Dole-Johnston bill was insufficient and how the Glenn bill was so much better. Does my colleague understand that the definition of ``benefit'' in the Glenn bill is word for word identical to that which is contained in the Dole-Johnston bill, save for one change? At the behest of Democrats we added the words ``quantifiable and nonquantifiable effects.'' That was Democrats who said, ``We want to be sure it includes both quantifiable and nonquantifiable.'' So they added that amendment. Does my colleague understand that? Excuse me, we also added the word ``health.''

Mr. JOHNSTON. If the Senator will allow me to come over, I have got them both right here.

Mr. JOHNSTON. I am looking at it right here.

Mr. JOHNSTON. If I am correct, will you acknowledge that?

Mr. JOHNSTON. Will the Senator yield at that point?

Mr. JOHNSTON. I am glad my friend from Wisconsin raised the question of judicial review because, indeed, in the original Judiciary Committee bill, I believe it did open up areas to litigation on procedural matters on the question of compliance with the risk assessment protocol. And I think it did have the possibility of tying things up in court. But the present Dole-Johnston bill provides that compliance with risk assessment and cost-benefit may be considered by the court, and I am quoting [[Page S 9757]] now, ``solely for the purpose of determining whether the final agency action''--that is the rule itself--``is arbitrary and capricious or an abuse of discretion.'' The key words here are ``solely for the purpose of determining whether the final agency action is arbitrary and capricious or an abuse of discretion.'' The final agency action is appealable anyway, under the present law. This simply makes the risk assessment protocol part of the record which may be considered only in connection with the final agency action.

Mr. JOHNSTON. Will the Senator yield at that point?

Mr. JOHNSTON. Would the Senator rather go ahead and vote on Daschle right now and propose it as a separate amendment?

Mr. JOHNSTON. Mr. President, if the Senator will further yield, I am inclined at this point to pull down the amendment. Frankly, it is likely that there will be another second-degree amendment which will not include the April 1 cutoff date. I am now advised that the April 1 cutoff date, even though agreed to by some on the other side of the aisle, has not been cleared, so in any event it would not pass. I think that is very unfortunate because I think it was a complete fix for this rule as well as other rules. But if my colleague from Ohio wants it withdrawn and my colleagues on the other side of the aisle want it withdrawn, it is not going to pass anyway, [[Page S 9760]] so if that is what I am being asked to do--I want to be sure that if I do this now, that is what everybody wants to do. The Senator from Ohio would like that done?

Mr. JOHNSTON. Mr. President, we had hoped to set aside the underlying Daschle amendment, which would set aside with it the Johnston substitute amendment. But I understand the minority leader wishes to go ahead with his amendment, so I regret to say the state of play is this. I proposed a second-degree amendment which I believe totally and completely solves the problem and I have said to my colleagues, Why do you not take ``yes'' for an answer? My colleagues on this side of the aisle do not seem to want that ``yes'' for an answer. In the meantime, the proposal that I had, which I thought was suitable on the Republican side of the aisle, apparently has some major problems there. And we cannot bring the bill down at this point. So I suggest we go ahead and vote on the Johnston amendment, which I guess will be voted down by Republicans because it goes too far. It will be voted down by Democrats because it does not go far enough. But I will vote for it because it solves the problem and I think that is what we want here. In any event, I think we ought to go ahead and vote and get on with the business so we can deal with some other amendments. Apparently the successful ability to deal with this amendment is eluding us as we speak.

Mr. JOHNSTON. Mr. President, let me be clear. The Johnston amendment fixes the problem of passive. It simply fixes it. Reasonable minds can disagree about many things about this bill. There is no problem with passive going forward. What the Johnston amendment says is that if you have already done a cost-benefit analysis and the rule has not changed, you do not have to redo it. And if you have promulgated your notice of proposed rulemaking prior to April 1 of this year, then you are exempted from cost-benefit or from risk assessment--very simple, very clear, very clear-cut. It fixes this problem. We have had a lot of debate here about whether some woman who went to the Jack-in-the-Box and ate some hamburgers and died, and all of this is going to kill her. Mr. President, it fixes the problem. Now, unfortunately, the amendment which was put forth on my behalf and with Senators Hatch and Roth and had a majority of support for a while, now, after having hung out there for a few hours, my friends on the other side of the aisle have changed their minds, apparently some of them at least, with respect to the April 1 date. They are concerned that now there will be this flood of regulations which will be exempt from cost-benefit and risk assessment. It is very unfortunate, Mr. President, that both sides could not stick together; that on our side of the aisle we could not recognize the fix which this is, and that the other side could not stick with what we thought was a deal. I fear what happens now is this whole bipartisan effort begins to come apart piece by piece--Democrats put forth a substitute and get 30-something votes, and the Republicans put forth their bill and it gets filibustered, and there we go. We have to be able to come together, Mr. President, if we are going to pass this difficult legislation. We have to be able to come together in some sort of reasonable middle ground that solves the problem and stick to a deal. This is complicated enough. I found myself accepting amendments from our side of the aisle, and then come back and be met from our side of the aisle with that amendment which we accepted on their behalf as being a fault of the legislation. That has happened not once but several times. We had a fix proposed from the other side of the aisle, and now they thought about it and that is not good enough. That is not going to pass this bill. This is a very important bill. We have people strung out all over the philosophical spectrum on this bill, and when we start putting forth amendments and then withdrawing them, I fear the whole thing is going to come apart. Mr. President, as I speak, there is still hope, and so I will yield the floor at this point and hope we can pull this amendment back together and the coalition for reasonable regulatory reform will reform. Mr. LEAHY addressed the Chair.

Mr. JOHNSTON. Will my friend yield?

Mr. JOHNSTON. Will the Senator now yield?

Mr. JOHNSTON. I am disappointed that my colleague would not yield for a question, because I wanted to ask him, did he not admit that the Johnston amendment allows this E. coli regulation to go forward? It does, and he has left the incorrect impression that the Johnston amendment somehow stops this regulation, and it does not. Let us be candid, Mr. President, about our representations out here. Let us not give the impression that the Johnston amendment somehow is going to allow this hamburger to be tainted and go forward because it stops the E. coli regulation. It does not. It solves the problem. It is clear that it does. There is no argument that it solves the problem. Mr. President, I hope my colleagues understand that.

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. The Senator recognizes that since the notice of proposed regulation was put out prior to April 1, 1995, that it would be exempt totally from risk assessment and cost-benefit, under that part of the amendment as well as the other part, am I correct?

Mr. JOHNSTON. Mr. President, will the Senator yield on that point?

Mr. JOHNSTON. Under the Johnston amendment, each one of those rules, having had a notice of proposed rulemaking prior to April 1, is exempt from this bill.

Mr. JOHNSTON. On mammography? If the notice of proposed rulemaking was after April 1, how is it scheduled to go into operation right away? Most of these rulemakings, the Senator told me, take a long time.

Mr. JOHNSTON. The April 1 date, under the Johnston amendment, is a notice of proposed rulemaking. So this notice has been out for years.