John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, I have the floor, and I would be glad to entertain the question.

Mr. JOHNSTON. Then it satisfies the requirements of section 624.

Mr. JOHNSTON. I am giving the Senator an answer to that.

Mr. JOHNSTON. If the underlying law says that, if applying the statutory requirements upon which the rule is based, the underlying law that requires the mammography, let us say, a rule cannot satisfy that criteria of subsection (b)--subsection (b) criteria are that the rule justify the cost, that you have the least-cost alternative unless there are scientific or data uncertainties or nonquantifiable benefits----

Mr. JOHNSTON. Here is what would happen. Within 1 year after the passage of this act, the head of each of the agencies shall look at all the rules under their supervision, determine which ones need to be looked at, and therefore come up with a preliminary schedule. That schedule will be published a year afterward. If this rule is on that schedule, then DuPont, since they are from Delaware--that is the only reason I use them--would not have to take further action because it is going to be reexamined. If it is not on the schedule and they want it reexamined, then they would petition. Their burden is to show that there is a substantial likelihood that the rule would not be able to reach, to satisfy the requirements of section 624.

Mr. JOHNSTON. And DuPont wants to contest the rule, say.

Mr. JOHNSTON. I will tell the Senator exactly what is required. He is talking about a rule already in operation.

Mr. JOHNSTON. I thank the Senator for his question because it is a critical question. The answer is yes. It is explicit. It says we shall supplement and not supersede.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. Mr. President, if I may reclaim the time for just a minute, it is irrelevant what the House wanted or what they wanted on the initial bill. I wanted no supermandate. The point is, what does the language say? Mr. President, I have been telling my colleagues, including my dear friend from Delaware, that we ought sometime to take yes for an answer. When language is clear, unambiguous, we need not put forth ambiguity into it. The Senator came to one of our negotiating sessions. We talked about judicial review. I believe I am correctly judging the Senator's reaction that when he read what we had about judicial review, there was a light bulb. I think I see what he is doing now. I think you will see here that not only do we have that language which says it supplements and does not supersede, but we also have language that explicitly recognizes that there will be times when you cannot meet the test; that is, that the benefits justify the cost. There will be times when you cannot do that because the statute requires otherwise. If you look on page 36, we say if applying the statutory requirements--this is line 22--if, applying the statutory requirements upon which the rule is based, a rule cannot satisfy the criteria of subsection B, it goes on to tell you what to do. But the point is that explicitly recognizes that there are circumstances in which because of the underlying statute, you cannot satisfy the fact that the benefits justify the costs because they told you in the Clean Air Act to use the maximum achievable control technology, for example. That is an explicit test in the Clean Air Act which may make meeting the test of subsection B here impossible.

Mr. JOHNSTON. Mr. President, just very briefly, one of the biggest fights we have had about this bill--and make no mistake, it has been a fight--is about the question of supermandates; that is, whether this bill supersedes the underlying bill such as the Clean Air Act. Mr. President, I laid down a marker in negotiation with Senator Dole and his staff, and Senator Hatch and others, that we would simply not accept a supermandate. The way the bill was drawn as it came from the House was that it said this section shall supersede existing law-- supersede. As it was reported out of the Senate Judiciary Committee, it said this bill shall supplement existing law. As we finally agreed, we came up with language that says this bill shall supplement and not supersede existing law.

Mr. JOHNSTON. And your petition would be rejected.

Mr. JOHNSTON

Mr. JOHNSTON. Under the definition of benefits, we have already included the quantifiable benefits. That is put into your cost-benefit ratio. This says that this is a little extra that you are able to add. If you are not able to quantify the value of life, which by its nature is nonquantifiable, or the value of [[Page S 9673]] clean air, then you can add that on and have a more costly alternative. That is exactly and precisely to deal with the problem that my friend from Illinois so eloquently described, which is the kid with asthma, the people with safety belts, and all that. It is nonquantifiable. It is human life. You do not put a dollar value on human life or on the value of clean air. I urge my colleagues to go back and read on page 36 those words. I think it covers this like a hand in a glove.

Mr. JOHNSTON. Is the Senator aware that at my behest, we put in language in the bill contained on page 36 that says if scientific, technical, or economic uncertainties or nonquantifiable benefits to health, safety, or the environment identified by the agency in the rulemaking record make a more costly alternative that achieves the objectives of the statute, appropriately and in the public interest, that that more costly alternative may be accepted because of the nonquantifiable benefits to health, safety, and the environment, or because of the uncertainty of science and data? Is the Senator aware that that amendment was added to this bill since that Business Week article was written?

Mr. JOHNSTON

Mr. JOHNSTON. We believe so, but if it needs to be further clarified, it can be. The idea here is that you want to have this determination made early enough in the process so that you can remedy the defects in the rule while the rule is still going on and not have to wait until it is all over with, because some of these rules take 2 or 3 years. And if you do not find out until, say, your final appeal is 6 or 9 months after the final rule, then you have to stay the rule and go back and do it all over again.

Mr. JOHNSTON. Surely.

Mr. JOHNSTON. Will the Senator reask the question. [[Page S 9632]]

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. The question is an appropriate one. The first appeal in the interlocutory appeal process would be on the question of major rules, whether it meets the $50 million threshold, whether it is a matter that involves the environment, health, and safety, or whether it has a significant impact on a substantial number of small businesses and, therefore, requires the regulatory flexibility. That appeal would be taken within 60 days and putting the notice in the Federal Register. The idea here is that you foreclose further appeals after that 60 days. Now there is in addition to that in the present Nunn-Coverdell amendment a more limited petition for review which allows you to get into the quality of the regulatory flexibility analysis. What we are saying is if it is subject to an appeal under section 706 of the Administrative Procedure Act, or under section 625 of this act, then the quality of that regulatory flexibility analysis insofar as it relates to the question of whether the final agency action was arbitrary, capricious or an abuse of discretion, they would have in that appeal the right to test the regulatory flexibility analysis at that point. For those which were not subject to that, they would have the ability to appeal in any court in the Nation that has jurisdiction and to ask for what would be an order to go back and do the reg-flex analysis.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. You have a choice. If you wait until the final appeal, it would be a more limited choice because the only remedy provided there is for the court, in effect, to order the reg-flex analysis, and if that then would call for a modification in the rule, then the rule would then be modified, but there would be, for example, no stay of the rule because of the inadequacies of the reg-flex.

Mr. JOHNSTON. No; the question of whether this is a rule which has a substantial, significant effect on a substantial number of small businesses, which is the trigger for the reg-flex, it is the intent here--and this language has not been drawn--it is the intent here that that test be only once.

Mr. JOHNSTON. That is correct. That is the intent. It is a little difficult to give precise answers since the actual language has not been drawn. That is the intent. But as to the quality of that, you can test that only later after the reg-flex attempt.

Mr. JOHNSTON. No, but you would preclude a review, for example, on whether this is a major rule, whether it has $50 million, if that is the trigger, or $100 million, which I hope we can get an amendment in to make it $100 million. That question would be reviewed, would be finally reviewed on the interlocutory basis. Does the Senator understand what I am saying?

Mr. JOHNSTON. No, not at all. That is the whole idea.