John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. This bill is $50 million.

Mr. JOHNSTON. Mr. President, just very briefly. The reg-flex amendment which we adopted yesterday which was designed to take care of small business includes in its definition of small entity, small governmental jurisdiction, which goes on to mean government, cities, towns, townships, villages, school districts, special districts, with a population of less than 50,000, unless an agency establishes another amount. So we took care really in the reg-flex amendment of yesterday, I believe, of the concerns about small towns and cities. And frankly I had not realized that that definition was in reg-flex. But I believe that covers the Senator's concern for small towns and jurisdictions. Mr. HATCH addressed the Chair.

Mr. JOHNSTON. Mr. President, I very much appreciate the contribution that the Senator from Texas has made to this effort, and I share with her completely her concern about small businesses and small towns and counties. I have been in towns in Louisiana which have been subjected to some of these incredible regulations that would fine them for doing things which just went contrary to common sense. I would sit there with the mayors of these various towns and wring my hands with them because it was so outrageous sometimes what these regulations provided. However, going from $50 to $100 million does not hurt the small towns or small businesses. It is not that by going down you exempt the smaller people. Rather, you make it possible or feasible for small counties, small towns, small businesses to have their regulations considered at all. In other words, the problem here is agency overload. I have met at some length with Sally Katzen, the head of OIRA. She said You know, one of our problems here is peers. We have peer review, but how can we find enough peers to review hundreds and hundreds of regulations and have cost-benefit ratios and risk assessments, scientific determinations for these hundreds of rules which are going to be simultaneously reviewed? And to do so by the way, in light of a budget which is now being cut in the appropriations process as we speak. It is going to be a formidable process. So, I think that the best way to get this done is to go in the direction of where we started in the Ford administration that major rules defined in the Ford administration is $100 million. And, you know, that amounts to $300 million something--$252 million. So we have been coming down in that through the years. I hope my colleagues will recognize this problem of overload. Look, if we are not overloaded on this process in a year or two the Senator can propose and I think the Senate would enact a lower threshold. I suspect what we are going to find is that we may be considering an upping of the threshold rather than a lowering of it simply because of the question of legislative overload. Really, if we can get this $100 million, I think it makes a better and more workable bill, one that will protect our small towns and counties and our small businesses. And I hope my colleagues will allow it to be done. Mrs. HUTCHISON addressed the Chair.

Mr. JOHNSTON. Mr. President, the trigger for a major rule reevaluation was begun in the Ford administration at $100 million. If we use that same amount today in value, $100 million in the Ford administration would now be worth $252 million, and in the Carter administration it would be $231 million, or in the Reagan administration it would be $154 million. In other words, this is only a fraction of the definition we have used since the Ford administration for triggering major rules. The problem here, Mr. President, is simply one of agency overload. We are requiring these agencies any time they put out a new rule--and we think there will be probably over 135 major new rules that are in process right now at the $100 million threshold--they will have to do cost-benefit analysis, they will have to do risk assessment with peer review, and judicial review, all of those things for rules which the administration now has in process. In addition to that, they are going to have to go back and review all rules which they select for review, all rules that cannot meet the present cost-benefit ratio, the cost-benefit test, and the risk assessment test. And the question again is what is a major rule? Is it $50 million or is it $100 million? In addition to that, you have a petition process so that any person who feels themselves aggrieved by a present rule will be able to petition to have that put on the schedule for review. It is an enormous amount of work. So what we want to do is set this limit at $100 million for a major rule rather than at $50 million hopefully to make the amount of work to be done manageable. We do not want to kill these agencies with so much kindness or so much work that they are not able to do anything. What industry wants is to be able to get some of these rules that are burdensome and adopted without science and adopted without proper procedures. They want to get them reviewed. If you allow for a review of any rule at $50 million as opposed to $100 million, it may so overburden the agencies that they cannot do anything, that you will have gridlock, that you will not be able to do whatever one wants to do and which is to have good risk assessment, good cost-benefit analysis, good science brought into rulemaking. It is a very straightforward amendment. It simply ups it to $100 million. I hope my colleagues are willing to accept this amendment. I yield the floor.

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

Mr. JOHNSTON. Mr. President, this amendment is very simple. It sets the definition of a major rule at $100 million and gives to the director, at his sole discretion, the ability to adjust that $100 million for inflation. Mr. President, $100 million has been the threshold for triggering the review of proposed major rules since the Ford administration. The effect over the years has been that $100 million now is much less.

Mr. JOHNSTON. Mr. President, this amendment is very simple.

Mr. JOHNSTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. JOHNSTON. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. JOHNSTON. Mr. President, I would say 30 minutes, really, ought to do it. It is very straightforward. It is just a question of setting the threshold at $100 million. I hope it is not controversial; 30 minutes would suit us fine, equally divided.

Mr. JOHNSTON. Mr. President, I would simply like to thank Senator Levin, Senator Biden, Senator Glenn, and others who have taken part in debate on this. They have identified the problem in very specific terms. This amendment deals fully and completely, in my view, with the question of the supermandate which is now laid to rest. There is no--N-O, none--super- mandate in this bill. It is made absolutely crystal clear and repeated again in this amendment. I congratulate all concerned for getting it worked out and making it clear.

Mr. JOHNSTON. We can do that.

Mr. JOHNSTON. Yes. We have that ready. We can put that in.

Mr. JOHNSTON

Mr. JOHNSTON. One final short question. I ask my friend to read the Secretary's letter. It pertains only to risk assessment, which, as I say, is contained in the Glenn-Daschle bill. That is all he talks about. He does not talk about the exception. I invite you and the principal author of the alternative to read your own bill, and I invite the Secretary to read the exceptions, because they except from the operation of risk assessment these inspections. At an appropriate time, I will be offering an amendment to exempt all regulations where notice of proposed regulation was commenced prior to July 1, 1995, because I think there is a problem going back and looking at that, and maybe that will give us a basis on which to satisfy the Secretary and everybody else.

Mr. JOHNSTON. They are the Secretary's words.

Mr. JOHNSTON. Is my friend aware of, on page 49 of the Dole-Johnston amendment, where it explicitly says, ``This subchapter shall not apply to risk assessment performed with respect to--'' you go down to ``(C), a human health, safety or environmental inspection, an action enforcing a statutory provision, rule, or permit or an individual facility or site permitting action, except to the extent provided''? In other words, it exempts the human health, safety or environment inspection from the risk assessment. Moreover, was my friend aware that under subsection (f) on page 25: A major rule may be adopted and may become effective without prior compliance with the subchapter if--(A) the agency for [[Page S 9693]] good cause finds that conducting cost-benefit analysis is impractical due to an emergency or health safety threat that is likely to result in significant harm to the public or natural resources . . .? So, in other words, my question is, is my friend--indeed, is the Secretary--aware that, first of all, inspections are exempt and, second, that you can go ahead and do a rule without either cost-benefit analysis or a risk assessment if there is a threat to health or safety?

Mr. JOHNSTON. At 5:30.

Mr. JOHNSTON. Does the Senator wish a rollcall on all the amendments or just the first one?

Mr. JOHNSTON. Madam President, we have been debating the Dole amendment here all today. I have heard really no criticism at all on the Dole amendments. If our side is willing to accept those on a voice vote, and I do not know that they are, is the majority leader willing to let those go on a voice vote? Or does he want----

Mr. JOHNSTON. Because the procedures surely do supplement and they do not conflict.

Mr. JOHNSTON. The point is let us make it relate to standards and not to procedures.

Mr. JOHNSTON. Yes, I----

Mr. JOHNSTON. What we are talking about is health-based or technology-based standards. Is there any other standard we are talking about?

Mr. JOHNSTON. We do not admit of that possibility. Mr. President, I think this has been a very useful exchange. And I hope, maybe following up on this, we can make clear that those health- based standards and technology-based standards of the environmental statutes are not affected, repealed, or modified in other ways.

Mr. JOHNSTON. If you would just leave out that ``in the event of conflict,'' because there is no conflict. That is why we say it shall supplement and not supersede, because we have written it in such a way that it does not conflict and we do not want courts to find conflict where none is there.