John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. If I could ask one more question.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. Will the Senator from Iowa yield for another question?

Mr. JOHNSTON. At the end of the 5-year period, it would sunset. Keep in mind that it did not get on the schedule and that the person at the agency [[Page S 9670]] was in charge of the schedule, and so he or she could advance the rule as quickly as he could. Would the Senator say that 5 years is not a sufficient time?

Mr. JOHNSTON. After the 3 years, 5 years.

Mr. JOHNSTON. Now, if I may ask the Senator this. The Senator said that under S. 343 rules automatically sunset. Now, two questions: First, is he not aware that in S. 343 we now provide--this has been added since it originally started--that any interested party may petition the court of appeals for D.C. to get an extension of up to 2 years upon a showing that the rule is likely to terminate, that the agency needs additional time, that terminating the rule would be in the public interest, and that the agency has not expeditiously completed its review. You cannot only get an extension of 2 years, but you can get such court orders as are appropriate, such as to complete the rulemaking, or commence the rulemaking, or advance the schedule, whatever court orders are necessary; and is he aware of that, and in light of that, would he not say that a sunset is not automatic under S. 343 but is subject to that extension?

Mr. JOHNSTON. I think the Glenn bill is ambiguous on that question. I do not believe S. 343 is in its present form. We will debate that at a separate time. I am simply saying that the Glenn bill is subject to the same thing on peer review that he says the Secretary of Agriculture says S. 343 has. Only ours is more flexible with respect to peer review than his because we allow for informal peer review, and the Glenn bill does not.

Mr. JOHNSTON. The Senator says that the Secretary of Agriculture objects because there is an interlocutory appeal provided in S. 343. Having recognized that both bills, the Glenn substitute and S. 343, provide for an appeal from the final agency action. So what the Senator from Ohio says is that the Secretary of Agriculture is objecting because of an interlocutory appeal. My question to him is, would he not agree with me that that interlocutory appeal--that is, an appeal taken within the first 60 days after the publication in the Federal Register of the question of whether or not it is a major rule, whether or not it pertains to health, safety, or the environment, or whether or not it affects small business requiring the reg-flex--that must be published in the Federal Register and appeal taken on that limited question within the first 60 days. Does the Senator agree with me that that is not what----

Mr. JOHNSTON. Is the Senator aware that S. 343 does not allow judicial review at every step along the way? It simply allows an interlocutory review for three limited questions. First, whether it is a major rule; that is, whether its impact will be $50 million--and I hope we can change that to $100 million--but the size of the rule. Second, whether it is a matter affecting health, safety or the environment, which would require a risk assessment. Third, whether it would require the reg-flex for small business. And that limited appeal would have to be made in 60 days. That is not to give a lawyer's dream; that is to give certainty, so that you do not, at the end of the process, have to go back and do the peer review and the risk assessment if you were incorrect about the size of the impact of the rule. Now, that is not what he is complaining about here, that interlocutory appeal. That is a separate thing. Would the Senator not agree with me that I have correctly stated what S. 343 states, and if I have not stated it correctly, would he correct me on how I have misstated it?

Mr. JOHNSTON. I invite my friend from Ohio to go back and read the letter. He may be also complaining about judicial review provisions. Did the Senator have any judicial review in his proposal?

Mr. JOHNSTON. Do I misread this when he says in the last paragraph on the first page that ``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''? He is not talking about appeal or effective date, he is talking about peer review, is he not?

Mr. JOHNSTON. I thank the Senator from Ohio. Mr. President, the Senator from Ohio just read a copy of a letter from Secretary of Agriculture Dan Glickman to Democratic leader Tom Daschle dated July 11 which he read in full which recommended veto because the Dole-Johnston bill added another level of procedure, which would be the peer review of these matters in food safety. I am looking at the Glenn substitute, particularly pages 27, 35, 36, and 37, and I see a peer review situation of exactly the sort that Secretary Glickman describes. I ask the Senator from Ohio, am I not correct, does he not include the same kind of peer review and, indeed, that includes on page 27 review of the Food Safety and Inspection Service for peer review?

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

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

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

Mr. JOHNSTON. Mr. President, if the Senator will further yield, I appreciate his candor. Let me say that this amendment was put in at my behest to deal with the problem. It was our best judgment as to how to deal with what really was, we thought, a problem with the original language. This was printed up, as you know, and then we went into negotiations on our side of the aisle. I personally spent something like 24 hours in direct face-to-face negotiations with our caucus and our Members and our staff. I did not, up until today, hear any criticism of this language. If there is a way better to make it absolutely clear that you can deal with these imminent threats without any delay, without having to do anything like cost-benefit or risk assessment, if that is not absolutely clear--and I believe it is as clear as the noonday Sun on a cloudless day, I think it just shines through--but if it is not, then I, for one, will certainly help clear it up. I will solicit the help of my good friend and good legal advisor from Connecticut in helping to sharpen that language.

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

Mr. JOHNSTON. The Senator, my friend from Connecticut, is one of the best lawyers in this body, and I consider him to be one of the best lawyers in the country. It is for that reason that I ask him, on page 25 of the bill, it contains language that says: A major rule may be adopted and may become effective without prior compliance with this subchapter if the agency, for good cause, finds that conducting a cost-benefit analysis is impractical due to an emergency or health or safety threat that is likely to result in significant harm to the public or natural resources. We have the same language over on page 49 that has to do with the risk assessment. So it covers both cost-benefit analysis and risk assessment, and the operative language is you do not have to comply with the chapter if there is a health or safety threat. Now, would the Senator not agree with me that the phrase ``health or safety threat'' would encompass any of these problems such as E. coli, cryptosporidium, Ebola, flu, the common cold? It covers everything relating to a health or safety threat. Would not the Senator, my friend, agree with that?

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

Mr. JOHNSTON. Mr. President, I will say in response that really the majority leader's amendment adds nothing to what is already in the bill except it says including E. coli. Health including E. coli. A health threat already included E. coli. It already includes [[Page S 9660]] cryptosporidium. It also includes the Ebola virus. It already includes everything that is encompassed in the world health. So it is totally unnecessary. But if it reassures somebody that now we are taking care of E. coli, so much the better.

Mr. JOHNSTON. The point is not what has happened in past history. We are dealing with what this bill says now here. I and my staff worked with the majority leader on this very provision to take care of not only E. coli, not only cryptosporidium, not only Ebola virus, but all public safety threats so that we exempted from any cost-benefit analysis or any risk assessment if it is impractical due to an emergency or health or safety threat that is likely to result in significant harm to the public or natural resources. Mr. President, what could be more clear than that? If it is a threat to public health or safety or likely to result in any significant harm to the public or natural resources, you do not have to do a cost- benefit analysis. You do not have to do a risk assessment. That was not in the original Dole bill. They accepted this amendment. Now they do not want to take yes for an answer. Mr. President, we need to get this bill to be really considered for what it says. I just received a statement of administration policy on this Comprehensive Regulatory Reform Act which I must tell you, Mr. President, I find offensive. I think it is disingenuous. I sat in the room with Sally Katzen who is head of the OIRA. She came up with some very good suggestions among which was a method--I call it the Katzen fix--whereby we could combine all of the scheduling of rules to be considered, of look backs of the petition process to have it all considered at the same time with that schedule controlled by the Administrator. We accepted this suggestion completely--Senator Dole and his staff, and Senator Hatch and others. And now I find that this is unacceptable and agencies are overwhelmed with petitions and the lapsing of effective regulations. It is just disingenuous because they accepted the very proposals which were made. Let us get serious about this bill, Mr. President. Look. This bill is not about E. coli bacteria or about cryptosporidium. Those are scare tactics. That has been taken care of in this bill. There may be a lot of things to oppose on real grounds. But I think we ought to get real about it. We ought to be ingenuous about our opposition, those who propose various provisions. And if there is a real problem with cryptosporidium or E. coli, why do not you offer the amendment? Let us see if we can work it out rather than come in on the floor with white- hot debate and mothers with children who die from various things. We are just as concerned about that, those of us who want regulatory reform, as anybody in this Chamber. And we have taken care of it. To suggest that it is not taken care of is just not ingenuous, Mr. President. We need regulatory reform. We need bipartisan regulatory reform. If there are serious amendments, let us consider them on their merits and not on the basis of something that is not in this bill. Several Senators addressed the Chair.

Mr. JOHNSTON. If the Senator will let me make a few comments, I will yield the floor.

Mr. JOHNSTON. Yes, for a question.

Mr. JOHNSTON. Mr. President, the problem with this bill is that the opponents are not willing to take yes for an answer. I do not know what happened in committee. I do not know whether the Republicans were opposed or were not opposed to some particular provision on E. coli bacteria. But I am telling you.

Mr. JOHNSTON. Will the Senator yield?