William Roth

Mr. ROTH

Mr. ROTH. Mr. President, I ask unanimous consent that, notwithstanding the consent agreement of July 20, 1995, the following amendment be the only first degree amendment in order to the Dole substitute to S. 21, and subject to a second degree to be offered by Senator Cohen, with all time for debate to [[Page S 10649]] be consumed tonight except for the time between 8:30 a.m. and 10:40 a.m., and 90 minutes beginning at 12 noon, with all that time to be equally divided between the two leaders or their designees.

Mr. ROTH. Mr. President, I further ask unanimous consent that at 1:30 Senator Daschle be recognized to use his leadership time, followed by Senator Dole to use his leadership time, and the Senate then proceed to vote on the Cohen second degree, to be followed immediately by a vote on the Nunn amendment, as amended, if amended, to be followed by a vote on the Dole substitute, as amended, if amended, to be followed immediately by a third reading and final passage of S. 21, as amended, if amended.

Mr. ROTH

Mr. ROTH. Mr. President, the Senate will be in controlled debate between 8:30 a.m. and 10:40 a.m. on the Bosnia legislation. I ask unanimous consent that at 10:40 a.m., the Senate stand in recess until 12 noon in order to hear an address by President Kim of the Republic of Korea.

Mr. ROTH. Mr. President, I ask unanimous consent that when the Senate completes its business today it stand in recess until the hour of 8:30 a.m. on Wednesday, July 26, 1995, that following the prayer, the Journal of proceedings be deemed approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then immediately resume S. 21, and that Senator Dodd be recognized.

Mr. ROTH

Mr. ROTH. Mr. President, I ask unanimous consent that the President pro tempore of the Senate be authorized to appoint a committee on the part of the Senate to join with a like committee on the part of the House of Representatives to escort His Excellency Kim Yong-sam, President of the Republic of Korea, into the House Chamber for the joint meeting tomorrow.

Mr. ROTH

Mr. ROTH. Mr. President, I rise for a second time in support of the Dole proposal. Current policy in Bosnia is a failure. Bosnian Moslems continue to be driven from their homes under a horrific policy of ethnic cleansing. Atrocities are escalating. U.N. peacekeepers, while well-intended, have been unable to stop it and have themselves, tragically, ended up as tools for Serb aggression. Our allies are paralyzed and the unrest threatens to destabilize the entire region. It is time for the West to extricate itself from this failed policy and undertake a different course of action. S. 21 offers a sound and just mechanism to do so. Under this legislation, the arms embargo against Bosnia would be lifted only after one of two conditions have been met: a request by the government of Sarajevo for the withdrawal of the U.N. peacekeeping forces in Bosnia, or a decision by the U.N. Security Council to withdraw the UNPROFOR. However, President Clinton has threatened to veto this legislation. He seems to fear that a change in course would leave America responsible for dealing with this conflict. This does not need to happen. The Bosnian Government is not asking America to send its ground troops to fight against the Serbs. The Bosnians only want access to weapons and supplies that will enable them to more effectively counter what everyone I know recognizes as aggression. The best approach now is to shift away from a policy that has only painfully and dangerously protracted the war, to a strategy structured around two clear objectives. The first is containment; that is, restricting the spread of the fighting. The second objective is the establishment of the balance of power necessary to stop Serb aggression. Toward these ends, America and its allies must work closely for the nations surrounding the conflict. The West must withdraw its peacekeepers, and we must allow the Bosnians to arm and defend themselves. The passage of the Dole proposal--I do hope that it will pass--is the first step in implementing such a strategy. It warrants our support. I hope the President will reconsider his opposition. It is not a carte blanche to the President. He must live up to its responsibilities as our Commander in Chief. The President must present the American people a coherent strategy toward ending this conflict. Mr. President, let me add that I support the amendment to be submitted by the Senator from Georgia. That amendment would require the President to request the U.N. Security Council to lift the arms embargo against Bosnia before the U.N. unilaterally lifts that embargo. I believe this amendment is consistent with the motivations behind S. 21 and would reinforce our interests within the United Nations and among our allies. Mr. President, the vision among our allies has led to paralysis and appeasement in Bosnia. Consequently, it is even more urgent that we are not divided at home. As I stated last week, strong congressional support behind S. 21 is absolutely essential. Combined with the President's support and leadership, S. 21 will be a first step toward a more effective strategy to end the aggression of atrocities now unleashed in Bosnia. I yield the floor.

Mr. ROTH

Mr. ROTH. If there is no further business to come before the Senate, I now ask that the Senate stand in recess under the previous order following the conclusion of the remarks of Senator Daschle.

Mr. ROTH

Mr. ROTH. Mr. President, for the information of all Senators, under the previous order, the Senate will begin voting on amendments and final passage of S. 21 at approximately 1:45 p.m. Therefore, Senators should be on notice that at least two votes will occur at that time. Following those votes, it will be the intention of the majority leader to begin the State Department authorization bill, and if consent cannot be granted the leader will move to proceed to S. 908.

Mr. ROTH

Mr. ROTH. Mr. President, one of the great challenges facing governments throughout this country, at all levels, is how to find the funds to maintain our basic public works infrastructure. Another challenge is find ways to bring sound business practices to the management of these assets. I believe that privatization is an important tool that, in many instances, can help government meet both of these challenges. Privatization of governmental facilities is not always the answer, but it is something we ought to look at more seriously than we have in the past. And where it makes sense, the Federal Government should do what it can, not only to undertake it itself, but also to encourage it in State and local governments. Unfortunately, there are well-intended Federal policies that may serve unnecessarily to discourage useful privatization of certain State and local government facilities. I am referring to what are called Federal-aid facilities. These are public works facilities belonging to State and local governments that have been constructed with the assistance of Federal funds. Examples include waste water treatment facilities, airports, parking structures, turnpikes, and public utilities. State and local governments that privatize such facilities are required to make a payment to the Federal Government, based on the amount of Federal aid that went into the facility. They are also restricted in how they can use the proceeds of the privatization. These limitations have served to discourage such privatizations. These Federal-aid facilities can be quite costly to operate and maintain, but funds for those purposes are increasingly limited. State and local authorities will find decreasing assistance in that regard from the Federal Government, given our severe budget constraints. But private investment and operation holds out the promise of filling that financial void, and of bringing new efficiencies to these enterprises. I believe we would be wise to seek creative ways of inducing nongovernmental funds to supplement these Federal, State and local investments. Therefore, I think it is important that we remove any unnecessary or outmoded barriers to the creation of public-private partnerships in the operation of these facilities. Legislation has been introduced in the House by Congressmen McIntosh and Horn, H.R. 1907, to eliminate these barriers. Today, I am introducing that legislation--the Federal-Aid Facility Privatization Act of 1995--in the Senate. It is my intention to hold hearings in the Governmental Affairs Committee on this bill and the issues it raises. And it does raise important issues and questions that need thorough exploration, before we go further with the legislation. Just as it is important to allow privatization where useful, it is also important to do so carefully and thoughtfully. Where Federal funds have been invested, we have a responsibility to ensure that this investment continues to serve the long-term public interest. I believe that this legislation is a very helpful starting point for examining the best way to use privatization as a tool to further the enhancement of public assets. I appreciate the effort that has been put into it by our colleagues in the House, and I look forward to working with them on this important reform.

Mr. ROTH

Mr. ROTH. Mr. President, why did S. 343 fail last night? As Casey Stengel would say, we did not have enough votes. And we did not have the votes we needed because no matter what changes were made to S. 343, it continued to be mischaracterized. From the beginning of its journey through the Judiciary Committee, S. 343 was demonized. Likewise, the bill reported from the Governmental Affairs Committee, S. 291, was beatified. Scores of improvements were made to S. 343 since it was reported by the Judiciary Committee. None of the few who understands the legislation would disagree. Moreover, yesterday proponents agreed to make significant additional changes requested by the bill's critics. But just as it went throughout the long floor debate, the opponents would not accept some improvements unless we agreed to all of their demands. Yes, opponents blocked our attempts to improve the bill because they preferred to preserve talking points against the bill. This is masterful politics, but this is also what disgusts the American people about Congress. In addition, it appears that proponents managed to create the impression that negotiations were ongoing that promised fruitful results. If such negotiations took place, like Senator Johnston, I can say that I was completely unaware. In contrast to S. 343, S. 291 and its successors have led charmed lives. The Glenn substitute, which the Senate rejected, was offered as the text that was unanimously reported by the Governmental Affairs Committee. But such a claim is highly misleading. Let me tell you why. This legislation is rather complicated. The competing versions are each over 75 pages in length. Yet the real heart of reform can be crystallized in a few concepts and in language that takes just a few pages. In fact, judicial review--perhaps the most significant and most controversial part of these bills--is provided in just one sentence. Yes, just one sentence. Suppose that sentence were stricken. Could you say that the bill was just about the same? The length of the bill would not be changed; over 99 percent of the words would be the same. But the impact of the legislation would be entirely different. This exemplifies what happened to S. 291 as it was transformed into the Glenn substitute. There are, as I said, just a few concepts one needs to grasp to understand regulatory reform. First. The agency should undertake a cost-benefit analysis. Second. The agency should apply the cost-benefit analysis. Third. If the agency does not comply with the first or second item, there is judicial review. Fourth. The agency must review existing rules under the above procedures. Fifth. There must be some way to ensure the agency reviews existing rules. Proponents and opponents appear to agree only on the first item, that agencies should perform cost-benefit analyses. That is because that is the status quo. That is what Executive Order 12866 requires today. But the Glenn substitute did not require that an agency actually use the cost-benefit test. While the Glenn substitute used language similar to S. 291 to require that a cost-benefit analysis be performed for major rules, the Glenn substitute has no enforcement provision to make clear that the cost-benefit analysis should matter--that it should affect the rule. The Glenn substitute excoriated the sentence on judicial review in S. 291 that made clear that the court was to focus on the cost-benefit analysis in determining whether the rule was arbitrary and capricious. That provision in S. 291 was taken from a 1982 regulatory reform bill, S. 1080, which was approved by a 94-0 vote in the Senate before it died in the House. In contrast, the Glenn substitute only required that the cost-benefit analysis be inserted in the Record with thousands of other documents and comments. This is essentially what happens under the current Executive order. The Glenn substitute had another fatal defect--it did not provide for an effective review of existing rules. Effective regulatory reform cannot be prospective only; it must look back to reform old rules already on the books. Since 1981, repeated presidential attempts to require the review of rules by Executive order have only met with repeated failures. But the Glenn substitute does not cure the problem. Like the Executive orders, the Glenn substitute makes the review of rules an essentially voluntary undertaking. There are no firm requirements for action--no set rules to be reviewed, no binding standards, no meaningful deadlines. The Glenn substitute merely asks each agency to issue every 5 years a schedule of rules that, ``in the sole discretion'' of the agency, merit review. The Glenn substitute seriously weakened the lookback provision in S. 291. While not perfect, S. 291 did have firm requirements. S. 291 prescribed the category of rules that the agencies were to review. If the agency failed to review any of those rules, they terminated automatically. The Glenn substitute had no such firm requirements. What a review of these elements shows is clear: the Glenn substitute was an elaborate re-write of the status quo. Reform--without change. For those few who understand what was happening on the Senate floor, it could not be clearer. The real losers last night were the American people. We, on the Senate floor, know that the discretion of regulators needs to be curtailed. We know that reform can be achieved in a way that fosters our health, safety, and environmental goals. S. 343 is, in fact, such a bill. But unfortunately, that was not quite clear enough last night.

Mr. ROTH

Mr. ROTH. I say to the distinguished majority leader that what we voted for in Committee was entirely different from what was voted for on the floor in the Glenn substitute. The Glenn substitute was toothless. Take, for example, the lookback. The lookback was purely discretionary on the part of the agency head. In our legislation, every rule had to be reviewed in 10 years, or it expired, terminated. So it is totally false to say that it was the same legislation.

Mr. ROTH. Mr. President, I do not want to extend the debate on this, but I do want to make it perfectly clear that there were significant differences between the Glenn substitute offered on this floor and what passed out of the Governmental Affairs Committee. It is a fact that, as far as cost-benefit analysis was concerned, the use of it was totally discretionary in the bill proposed by Senator Glenn; whereas, in the Governmental Affairs Committee, it had to be reviewed and included as part of the review. When it came to the lookback of rules, it was discretionary, totally discretionary on the part of the agency head as to whether there would be any rule on the schedule. Whereas, in contrast, in the Governmental Affairs Committee bill, every rule had to be reviewed in a 10-year period or it was terminated. So, while a lot of the language was the same, the fact was the thrust was different, because in one case there were requirements that cost- benefit be done, and the other there was not.

Mr. ROTH

Mr. ROTH. Mr. President, I rise to urge my colleagues to come together to support the ongoing effort to reform the regulatory process. We want to make regulations both more efficient and more effective. We want to protect health, safety, and the environment in a more effective way, and we want to reduce the cumulative regulatory burden that impacts on all of us as consumers, wage earners and taxpayers. This is a call for progress, not retreat. Since the beginning of this session, I have stated repeatedly that regulatory reform should be a bipartisan issue and virtually everyone who has examined the regulatory process, regardless of their political bent, has concluded that it needs to be reformed. Let me just take a moment to share some revealing statements. President Clinton, in the preamble to Executive Order 12866 on regulatory planning and review, stated: The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well- being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable. The Executive order then concludes that ``We do not have such a regulatory system today.'' In a seminal report, ``Risk and the Environment,'' a bipartisan, blue ribbon panel of the Carnegie Commission has emphasized: The economic burden of regulation is so great, and the time and money available to address the many genuine environmental and health threats so limited, that hard resource allocation choices are imperative. Justice Stephen Breyer, who was nominated to the Supreme Court by President Clinton, has testified: Our regulatory system badly prioritizes the health and environmental risks we face. Paul Portney, vice president of Resources for the Future, has observed that ``Much good can come from a careful rethinking of the way we assess risks to health and the environment and the role we accord to economic costs in setting regulatory goals.'' All of these quotes show quite clearly that there is a very real and pressing problem with Federal regulation. This is not about rolling back environmental, health, and safety standards. This is about reforming the regulatory process so we can achieve more good with our limited resources. This is not a one-party issue. Mr. President, let me point out that today, the managers of S. 343, again, have agreed to many changes to accommodate the concerns of our colleagues. I doubt that our distinguished Vice President has had the opportunity to review these changes. But I hope he will, because I think if he did, he would see that this legislation that we are proposing today means real reform to a system that is badly out of kilter. Let me point out that we have agreed, for example, to add new language to make perfectly clear that S. 343 does not contain a supermandate. We have also agreed to amend the cost-benefit decisional criteria of section 624 to replace the least-cost test with a greater net benefits test. Moreover, we have agreed to streamline the petition provision to section 553; to delete interlocutory appeals; to replace the automatic sunset in section 623 with a provision in the Glenn- Chafee substitute providing for a rulemaking to repeal a rule; and to delete the requirement that a rule have substantial support in the rulemaking files. Mr. President, these changes show clearly that we are acting in good faith to meet the concerns of our colleagues who want regulatory reform. I now call upon those who want to help this effort to step forward and support cloture. We must reform the regulatory process in a meaningful way, and the Dole-Johnston compromise would provide the reform we need. It would be a terrible waste to destroy this unique opportunity to reform the regulatory process. Mr. President, I yield back the remainder of my time.

Mr. ROTH

Mr. ROTH. Mr. President, I would like to announce that the Subcommittee on Post Office and Civil Service, of the Committee on Governmental Affairs, will hold a hearing on July 26, 1995. The Postmaster General of the United States will present the Annual Report of the Postal Service. The hearing is scheduled for 9:30 a.m. in room 342 of the Dirksen Senate Office Building. For further information, please contact Pat Raymond, staff director, at 224-2254.

Mr. ROTH

Mr. ROTH. Mr. President, I rise to express my support of S. 21, the Bosnia and Herzegovina Self-Defense Act of 1995. I do so because I regard it as a first step in a more effective strategy to enable the Bosnian people to exercise the right of self-defense to bring this horrible war and its atrocities to an end and to do so in a way that will, in the long term, reinforce the cohesion of the alliance. Those who argue against this legislation fear that it risks a crisis within the alliance. They fear it will escalate the conflict and its atrocities, as well as expand the war into the surrounding regions. The truth is, Mr. President, current policy has already made these fears today's realities, and with each passing hour, the situation only gets worse. First, because of the war, the alliance is already well into its worst crisis of cohesion. The current course of events in the Balkan war is only making this acrimony even sharper. Second, the war in Bosnia is escalating. The Serbs have initiated the largest offensive since the beginning of the conflict. Croatian Serbs and Serbian regulars have crossed over into Bosnia to support the Bosnia Serbs. They have declared the United Nation and NATO to be enemies. They continue to humiliate and attack U.N. and allied forces that are trying to bring peace and humanitarian assistance to that region. They have shot down an American F-16. We are all witnesses to the Serbs' attacks against the safe havens in Bosnia. We are all witnesses to the ethnic cleansing now underway, and we cannot dismiss new concentration camps the Serbs are establishing and the new waves of rapes and other crimes. Our fears have become reality, and it is now necessary for a new strategy to end this conflict. The emphasis of a new strategy should be to establish a military balance in former Yugoslavia that will induce and sustain a negotiated settlement. Toward this end, I believe the United States should take the following steps: First, the United States Government should notify the United Nation and our allies that it favors the withdrawal of the UNPROFOR from Bosnia, and if the Western alliance is to remain cohesive, we must honor the President's commitment to provide United States forces to facilitate the withdrawal of the UNPROFOR. Second, the United States should help the Bosnia Government attain the military equipment and supplies necessary to defend itself. The Serbian Army inherited from the former Yugoslavia a vast superiority in military equipment and infrastructure, including large numbers of tanks, armored personnel carriers, artillery, and aircraft. These advantages have been preserved by the current arms embargo against Bosnia, and the Serbs are brutally exploiting these advantages. Even with a more disciplined and larger army in terms of personnel, Sarajevo has not been able to overcome their weakness in equipment and supplies. Considering the Bosnian fighters' demonstrated courage and their will to fight, Sarajevo's access to modern arms will help significantly offset the Serb advantages in weaponry and logistical support. Third, the United States should declare that it will exercise the right to utilize its air power in a sustained and strategic manner against any Serb effort to exploit the UNPROFOR withdrawal and to assist the Bosnian military in defending against any Serb offensives. The commitment to employ air power is necessary to prevent further Serb aggression and massacres. However, the application of American air power is not to win the war for the Bosnians, nor should it be construed as a step toward a commitment of United States ground forces. The war must be fought and won by the Bosnians. The purpose of United States air power would be only to deter further Serb offenses and deny them the advantages they now exploit from their superiority in heavy tanks, artillery, and military equipment and infrastructure. These steps will help the Bosnian people to more effectively defend themselves on a strategic level. They would contribute to a more even distribution of military power in the region. That would help deny aggressors in the war [[Page S 10276]] opportunities and incentives to continue their offenses. Indeed, it would help prompt them to recognize the imperative of achieving a negotiated and peaceful solution to the war. Mr. President, strong congressional support behind S. 21 is absolutely essential. Strong support will communicate to the world America's determination not to tolerate the aggression now underway in Bosnia. It will demonstrate to our European friends and allies that America is always ready to live up to its commitments, and that America is always prepared and willing to undertake what is necessary to establish and ensure enduring peace and stability in post-cold-war Europe. I yield the floor. Mr. SIMON addressed the Chair.

Mr. ROTH

Mr. ROTH. Mr. President, I rise to call upon my colleagues to take a leadership role to change the status quo, to reduce the cumulative regulatory burden that costs the average American family $6,000 per year, and to ensure that we will have smarter, more cost-effective regulation that will benefit us all. I rise to repeat once again that meaningful regulatory reform is critical to ensuring that we reduce the regulatory burden while still ensuring strong protections for health, safety, and the environment. The answer to this problem is legislation that will make a difference. Make no mistake about it, the answer to this problem is the Dole- Johnston compromise, not the Glenn substitute. Mr. President, there is no argument but what the regulatory process is broken. Virtually every authority who has studied the regulatory process--from Justice Stephen Breyer to the Carnegie Commission, from Vice President Gore to the Harvard Center for Risk Analysis, from scores of scholars to dozens of think tanks--agrees that the regulatory process needs to be reformed. And this problem is so undeniable that I do not believe any of my colleagues would publicly deny that there is a problem. But the question remains, who wants to do something about this problem that none of us can deny? I submit that the Dole-Johnston compromise, S. 343, will do something about the problem. It will effect meaningful, responsible regulatory reform. And I regret to say that the Glenn substitute will not. We all agree that we do not want to be where we are with Government regulation. We will admit that we need to move back to reform old rules and move ahead to be sure future rules make sense. Mr. President, allow me to draw an analogy. You could compare S. 343 and the Glenn substitute to automobiles that purport to allow us to take this journey which we all say we want to make. As I detailed yesterday, if you look at these two vehicles, they look similar at first blush. From a distance, they both have provisions for cost-benefit analysis, review of existing rules, risk assessment, comparative risk analysis, market mechanisms and performance standards, reform of the Regulatory Flexibility Act, congressional review of rules, and regulatory accounting. When you try to start the Glenn vehicle, you find it does not go backward. It will not ensure that old, irrational rules already on the books are reviewed and reformed. You will find that the Glenn vehicle does not go forward. It does not have a focused cost-benefit test which will ensure that new rules make sense, that their benefits justify their costs. When you look under the hood of the Glenn vehicle, you will find to your surprise that it has no engine. The judicial review provision is so weak that an agency can do a very sloppy job of doing a cost-benefit analysis or other analysis and then does not have to act upon that analysis, so it makes a difference on the rule. And there is little anyone can do about it. Now, what good is this--a car that cannot go in reverse, cannot go forward, and has no engine? That vehicle will get you nowhere. That is the Glenn substitute. If we are to have that, we may as well not have a regulatory reform statute because the Glenn substitute represents nothing but the status quo. Mr. President, I need to take a little time to dispel a very serious misconception that some people have about the Glenn substitute, and that is it is not--it is not--the Roth bill. The Glenn substitute is not by a long shot S. 291, the bill that I introduced in January and that was reported unanimously out of the Governmental Affairs Committee. While S. 291 was itself a compromise and was originally adopted by Senator Glenn as S. 1001, he has now taken steps to fatally weaken it. Let me briefly highlight a few major departures. First, the Glenn substitute seriously weakens the lookback provision that was in the Roth bill. The Roth bill required agencies to review all major rules in a 10-year period or be subject to sunset or termination. The revised Glenn substitute now makes the review of rules a purely voluntary undertaking. There are no firm requirements about the number of rules to be reviewed or which rules to review. In other words, it is a matter up to the sole discretion of the agency. There are no requirements about the number of rules, if any, that have to be reviewed. A second major change. Senator Glenn's substitute guts the judicial review provision that was in the Roth bill. Section 623(e) of the Roth bill and the original Glenn bill stated that the cost-benefit analysis and risk assessment shall, to the extent relevant, be considered by a court in determining the legality of the agency action, and that meant that the court should focus on the cost-benefit analysis in determining whether the rule was arbitrary and capricious. The Glenn substitute strikes that language. That weakens the whole bill. That means the Glenn vehicle has no engine. The Glenn substitute does adopt cost-benefit language that was in the Roth bill. But without any meaningful judicial review, the cost-benefit test does not mean much at all. For a reviewing court, the analysis is just another piece of paper among the thousands of pieces of paper in the rulemaking record. The Glenn substitute asks the agency to publish a determination whether the benefits justify the costs. But the Glenn substitute does not push regulators to issue rules whose benefits actually do justify their costs. I have always believed we need a stronger cost-benefit test. In effect, the Glenn substitute merely asks the agency to do a cost- benefit analysis. However, the agency can do a poor analysis and, worse still, does not have to act upon the analysis. In other words, the cost-benefit analysis need not make a difference in the rule. The rule can still be inefficient and ineffective. This is not the Roth bill. This is not what I want, and it is not what the American people want. Mr. President, the Dole-Johnston compromise is the proper vehicle for regulatory reform. It will allow us to go back to review old rules on the books. It will allow us to go forward and to ensure, as a general rule, new rules will have benefits that justify their costs. It has an engine to ensure we will get where we want. And I urge my colleagues who want real regulatory reform to set aside partisan politics and join me in supporting the Dole-Johnston compromise. The truth is, if you compare the Dole bill and the Glenn bill section by section, they, at first blush, look a lot alike. At bottom, there are some very key, important differences. First, meaningful regulatory reform must change future rules. The key to ensuring that new rules will be efficient and cost-effective is to have an effective cost- benefit test. The Dole bill has a focused cost-benefit test. The decisional criteria in section 624 ensures that the benefits of a rule will justify its cost unless prohibited by the underlying law authorizing the rule. In contrast, the Glenn bill has no cost-benefit decisional criteria. The bill requires that a cost-benefit analysis be done, but the bill does not require that the cost-benefit analysis be used or that the rule will be affected by [[Page S 10218]] the cost-benefit analysis. The agency only has to publish a determination whether the benefits of a rule will justify its cost and whether the regulation is cost effective. But the Glenn bill does not push regulators to issue rules whose benefits actually do justify their costs. I have always believed that an effective regulatory reform bill should have a stronger cost-benefit test. Some of my colleagues have complained about the least cost component of the decisional criteria. Many of us have been willing and have sought to negotiate language to substitute for or remedy some of the concerns as expressed by my colleague, but I want now to return to a second point about regulatory reform.

Mr. ROTH. My time is limited, so I want to continue. The third point I want to emphasize is that effective regulatory reform must be enforceable to be effective. That means there has to be some opportunity for judicial review of the requirements of the legislation, just as there is with most any law Congress passed. S. 343 strikes a balance by allowing limited but effective judicial review. S. 343 carves away from the standard level of judicial review provided by the Administrative Procedures Act which has existed for almost 50 years. The limited judicial review provided by S. 343 will help discourage frivolous lawsuits, and that is why S. 343 has limited judicial review. An agency's compliance or noncompliance with the provisions of S. 343 can be considered by a court to some degree. The court can, based on the whole rulemaking record, determine whether the agencies sufficiently complied with the cost-benefit analysis and risk assessment requirements of S. 343 so that the rule passes muster upon the arbitrary and capricious standard. The arbitrary and capricious standard is very deferential to the agency. A court would uphold the rule unless the agency's cost-benefit analysis or risk assessment was so flawed that the rule itself was arbitrary and capricious. The court would not strike down a rule merely because there were some minor procedural missteps in the cost-benefit analysis or risk assessment. In contrast, the Glenn substitute, as now redrafted, does not permit meaningful judicial review of the risk assessment or cost-benefit analysis. The Glenn substitute only requires a court to invalidate a rule if the cost-benefit analysis or risk assessment was not done at all. But the Glenn substitute does not really allow the court to consider whether the cost-benefit analysis or risk assessment was done properly. Indeed, the language of the legislation has been so weakened that now substantial portions of this bill are irrelevant to the extent that a court could not require the agency to perform the cost-benefit analysis, the risk assessment or peer review in the manner prescribed by the bill. Compliance with cost-benefit analysis and risk assessment requirements of the bill would be optional by the agency, the same way it is optional for them to comply with the Executive order that now requires these analyses. Now, Senator Glenn has claimed that his bill is essentially the same as S. 291 which, of course, is the regulatory reform bill I introduced in January, which did receive bipartisan support of the Committee on Governmental Affairs. I say, as I stated earlier, that while the original Glenn bill was similar to the Roth bill, the latest version of the Glenn bill seriously differs from the Roth bill. Many of the provisions have been weakened. The Roth bill and the original Glenn bill required agencies to review all major rules in a 10-year period with a possible 5-year extension, or the rules would sunset or terminate. The revised Glenn substitute lacked any firm requirement about the number of bills to be reviewed. Now, Mr. President, I think that is a very important and very significant change. As a matter of fact, as I said earlier, anyone who has reviewed the regulatory rules on the books have agreed that many of them are, today, irrelevant, cumbersome, and not equipped to do the job that they were intended. These studies have been made by distinguished organizations, including a group at Harvard. Our former colleague, and now Vice President Gore, has stated on a number of occasions, as part of his program to reinvent Government, that many regulations are undesirable. So I think it is a very, very serious mistake the way the Glenn substitute has weakened the lookback provisions of this legislation. As I said, my original bill required all rules to be reviewed in a 10-year period, subject to a 5-year extension, and if a rule were not reviewed in that period of time, then, of course, the rule would be terminated. Under the revised Glenn substitute, that is not the case. It leaves everything entirely in the discretion of the agency head. An agency head could provide a 5-year schedule of reviewing rules that includes many appropriate rules. On the other hand, he or she could include one, zero, or five, as there are no requirements in the current version of the Glenn legislation that rules be reviewed. As I say, I think this is a serious mistake. Worse still, Senator Glenn has weakened the judicial review provision that was in the Roth bill and that originally appeared in the Glenn bill. Here I have reference to section 623(E) of the Roth bill, the original bill, which stated that the cost-benefit analysis and risk assessment shall, to the extent relevant, be considered by a court in determining the legality of the agency action. This is a matter that is particularly bothersome, because what the proposed legislation provides is that an agency will make a cost- benefit analysis and, where appropriate, it will make a risk assessment. But there is no requirement in the Glenn substitute that either the cost-benefit analysis or risk assessment be used in the rulemaking process. Now, it seems to me that that destroys the whole purpose of regulatory reform. I think many of us feel very strongly that regulatory reform, [[Page S 10219]] as a general rule, means that benefits should justify costs. Mr. President, I ask unanimous consent that the time before the recess be further extended for a statement to be made by the majority leader, following the statement of the minority leader.

Mr. ROTH. I thank the distinguished Senator. Mr. President, as I was saying, I want to return to a second point about regulatory reform. Effective regulatory reform cannot be prospective only. It must look back to reform old rules already on the books, and the Dole-Johnston compromise contains a balanced, workable and fair resolution of how agencies should review existing rules. Agencies may select for themselves any particular rules that they think need reexamination, while allowing interested parties to petition the agency to add an overlooked rule. To ensure that only a limited number of petitions will be filed, S. 343 limits petitions to major rules and sets a high burden of proof. Petitioners must show a substantial likelihood that the rule could not satisfy the cost-benefit decisional criteria of section 624. This is an efficient and workable method to review problematic rules. The Glenn substitute, on the other hand, makes the review of agency rules a voluntary undertaking. There are no firm requirements for action, no set rules to be reviewed, no binding standard, no meaningful deadline. The Glenn substitute simply asks that every 5 years, the agency issue a schedule of rules that each agency, in its sole discretion, thinks merits review. It does not require any particular number of rules to be reviewed, and if someone asks the agency to review a particular rule, there is no judicial review of a decision declining to place the rule on the schedule. Moreover, there is no judicial review of any of the deadlines for completing the review of any rules.

Mr. ROTH. Mr. President, I ask unanimous consent that the recess ordered for 12:30 p.m. today be delayed in order that Senator Daschle be recognized to speak for a period of not more than 10 minutes.

Mr. ROTH

Mr. ROTH. No.

Mr. ROTH. I thank the distinguished Senator for his comments. Mr. President, I rise to call upon my colleagues to support meaningful regulatory reform. I want to explain why I believe that the Dole-Johnston compromise, S. 343, is the key to changing the status quo, and why the Glenn substitute is not the solution to reforming the regulatory process. I believe that regulatory reform is one of the most important issues we face. The reason is that, overall, Government regulation has an enormous impact on our lives--for better or for worse. If regulations are well-designed and implemented, they can do a lot of good--by making a cleaner environment, safer workplaces, and safer products. But, at the same time, regulations can be very costly, and, if poorly designed, too costly--by raising prices, taxes, and paperwork; diminishing wages; eating up time; and wasting opportunities to do better things with our limited resources. The cumulative regulatory burden costs about $600 billion per year. I believe that, if this massive regulatory machine were retooled, it could do much more good at less cost. Most experts who have examined the regulatory process, regardless of background or political bent, have concluded that the regulatory process is seriously out of whack and must be reformed. Few if any of my colleagues would dare to say publicly that we should be happy with the status quo. So the question is, why is there so much controversy about the S. 343? The answer is simple--it is very hard to change the status quo in a significant way. It is a Herculean task to reform one of the most untamed frontiers of big Government--a massive regulatory machine that costs the average American family about $6,000 per year. That explains why an earlier attempt at regulatory reform, S. 1080, which passed the Senate 94-0 in 1982, was killed in the House. And that explains why people are accusing supporters of S. 343 of wanting to expose the public to tainted meat, breast cancer, and contaminated drinking water. None of this is remotely true, and it does not belong on the Senate floor. We wasted days last week on meritless arguments that S. 343 needs specific exemptions for meat inspection rules, mammography rules, and so on. The fact is, these arguments got a lot of press, but such exemptions were not needed. The Dole-Johnston compromise has a clear exemption for threats to human health and safety, as well as other emergencies. In fact, the Glenn bill itself does not have such exemptions, because, as anyone recognizes who knows how these bills work, such exceptions are not needed. The truth is, if you compare the Dole bill and the Glenn bill section by section, they look a lot alike. At bottom, there are only a few key differences. But these few differences are critical to effective regulatory reform. First, meaningful regulatory reform must change future rules. The key to ensuring that new rules will be efficient and cost-effective is to have an effective cost-benefit test. The Dole bill has a focused cost-benefit test. The decisional criteria in section 624 ensures that the benefits of a rule will justify its cost, unless prohibited by the underlying law authorizing the rule. Section 624 is not a supermandate; it does not trump existing law. It simply tells the agency, if possible and allowed by law, to issue regulations whose benefits justify their costs. That is plain common sense. In contrast, the Glenn bill has no cost-benefit decisional criteria. The bill requires that a cost-benefit analysis be done, but the bill does not require that the cost-benefit analysis be used or that the rule will be affected by the cost-benefit analysis. The agency only has to publish a determination whether the benefits of a rule will justify its costs and whether the regulation is cost- effective. But the Glenn bill does not push regulators to issue rules whose benefits actually do [[Page S 10106]] justify their costs. I have always believed that an effective regulatory reform bill should have a stronger cost-benefit test. Some of my colleagues, including Senators Glenn and Levin, have complained repeatedly about the least cost component of the decisional criteria. Section 624 of S. 343 says, whether or not the benefits of a rule can justify its costs, the agency should select the least cost alternative the achieves the objectives of the statute. I think there is some merit to the concern that the least cost standard is too limited. If a rule costs a little more than the least cost alternative but provides much greater benefits, I believe that the agency should pick the much more beneficial rule--even if the benefits are quantifiable or are not environmental, health or safety benefits. Why not? Why not spend a little more to get much greater benefits for the public? Yet, while I share the concerns of many of my colleagues, I have not been able to work out a solution. For weeks, I have tried to work out two solutions--a most cost-effective test or a greater net benefits test--with my other colleagues. I believe that either test is far better than the least cost test with its vague exception for certain nonquantifiable benefits. Yet, we have made no progress, even though proponents of the substitute continue to complain about the least cost standard. I think it is time we worked this out in a bipartisan fashion. Now, I want to return to a second point about regulatory reform: effective regulatory reform cannot be prospective only; it must look back to reform old rules already on the books. The Dole-Johnston compromise contains a balanced, workable, and fair resolution of how agencies should review existing rules. Agencies may select for themselves any particular rules that they think need reexamination, while allowing interested parties to petition the agency to add an overlooked rule. To ensure that only a limited number of petitions will be filed, S. 343 limits petitions to major rules and sets a high burden of proof--petitioners must show a substantial likelihood that the rule could not satisfy the cost-benefit decisional criteria of section 624. This is an efficient and workable method to review problematic rules. The Glenn substitute, on the other hand, makes the review of agency rules a voluntary undertaking. There are no firm requirements for action--no set rules to be reviewed, no binding standards, no meaningful deadlines. The Glenn substitute simply asks that, every 5 years, the agencies issue a schedule of rules that each agency in its sole discretion thinks merits review. It does not require any particular number of rules to be reviewed. And, if someone asks the agency to review a particular rule, there is no judicial review of a decision declining to place the rule on the schedule. Moreover, there is no judicial review of deadlines for completing the review of any rules. No matter how irrational a rule is, no matter how many people it is burdening, an agency does not have to review it. If the agency happens to put the rule on the schedule, nothing prevents the agency from procrastinating for 11 years. Again, the only deadline is a modest 11-year deadline for reviewing the rule. The third point I want to emphasize is that effective regulatory reform must be enforceable to be effective. That means there has to be some opportunity for judicial review of the requirements of the legislation, just as there is with almost any law Congress passes. S. 343 strikes a balance by allowing limited, but effective, judicial review. I should note at the outset that S. 343 has been mischaracterized as a lawyer's dream and a litigation morass. In fact, S. 343 provides less judicial review than is normally provided for any law that Congress passes. S. 343 carves away from the standard level of judicial review provided by the Administrative Procedure Act, which has existed for almost 50 years. The limited judicial review provided by S. 343 will help discourage frivolous lawsuits, and that is why S. 343 has limited judicial review. At the same time, it does allow an agency to be held accountable for complying with the major requirements of the bill. An agency's compliance or noncompliance with the provisions of S. 343 can be considered by a court to some degree. The court can, based on the whole rulemaking record, determine whether the agency sufficiently complied with the cost-benefit analysis and risk assessment requirements of S. 343 so that the rule passes muster under the arbitrary and capricious standard. The arbitrary and capricious standard is very deferential to the agency. A court would uphold the rule unless that agency's cost-benefit analysis or risk assessment was so flawed that the rule itself was arbitrary and capricious. The court would not strike down a rule merely because there were some minor procedural missteps in the cost-benefit analysis or risk assessment. In contrast, the Glenn substitute, as now redrafted, does not permit meaningful judicial review of the risk assessment or cost-benefit analysis. The Glenn substitute only requires a court to invalidate a rule if the cost-benefit analysis or risk assessment was not done at all. But the Glenn substitute does not really allow the court to consider whether the cost-benefit analysis or risk assessment was done properly. Indeed, Senator Glenn has weakened the language originally in his bill so that now substantial portions of his bill are irrelevant to the extent that a court could not require the agency to perform the cost-benefit analysis, risk assessment, or peer review in the manner prescribed by the bill. Compliance with cost-benefit analysis and risk assessment requirements of the bill would be optional by the agency, the same way it is optional for them to comply with the Executive order that now requires these analyses. Senator Glenn has claimed that his bill is essentially the same as S. 291--the regulatory reform bill I introduced in January and which received the bipartisan support of the Committee on Governmental Affairs. Although the original Glenn bill was similar to the Roth bill, the current Glenn substitute seriously differs from the Roth bill. For example, Senator Glenn has seriously weakened the review of rules provision. The Roth bill required agencies to review all major rules in a 10- year period, with a possible 5-year extension, or the rules would sunset, or terminate. The revised Glenn substitute lacks any firm requirement about the number of rules to be reviewed. Worse still, Senator Glenn has weakened the judicial review provision that was in the Roth bill and that originally appeared in the Glenn bill. Section 623(e) of the Roth bill and the original Glenn bill stated that the cost-benefit analysis and risk assessment ``shall, to the extent relevant, be considered by a court in determining the legality of the agency action.'' That meant that the court should focus on the cost-benefit analysis and risk assessment in determining whether the rule was arbitrary and capricious. Now, the Glenn substitute strikes that language. The Glenn substitute merely asks the agency do the cost-benefit analysis and risk assessment, but the agency can do a sloppy job. The agency also does not have to act upon the analyses and issue a rule whose benefits justify its costs. In fact, the agency simply can ignore the cost- benefit analysis. And nobody can do much about an agency that is doing a bad job. For a reviewing court, the analyses are just some more pieces of paper among the many thousands of pieces of paper in the rulemaking record. The court does not have to focus on the cost-benefit analysis in determining whether the rule makes sense. Mr. President, that is not real regulatory reform. That is protecting the bureaucracy at the expense of the public. I should also mention that the Glenn bill seriously weakens the risk assessment provisions of the Roth bill. The Glenn substitute significantly carves back on the number of agencies and programs that would have to comply with the risk assessment requirements. Moreover, the risk assessment language itself is weakened. As just one example, section 634(c)(1) of the Glenn language reverses the standard interpretation of how defaults should be used. The substitute relies on a minority comment in the National Academy of Science report, Science and Judgment. That is, the Glenn substitute [[Page S 10107]] prefers default assumption when relevant data is available. That is not what good scientists would do. And that is not what the majority of the National Academy would recommend. Finally, Senator Glenn has weakened the definition of ``major rule.'' There are no narrative provisions under which OMB could list certain problematic rules as major rules subject to full analysis. Now, as I mentioned, if you compare S. 343 with the Glenn substitute, you would see that, section-by-section, they look similar. Both have provisions for cost-benefit analysis, risk assessment, review of existing rules, comparative risk analysis, market mechanisms and performance standards, reform of the Regulatory Flexibility Act, congressional review of rules, and regulatory accounting. But without a focused and effective cost-benefit test, there is nothing to require future rules to be justifiable and cost-effective. And without an effective lookback provision with real requirements, there is nothing to ensure that old rules already on the books will be reformed. Finally, without effective judicial review, we may as well not have a statute at all--we could keep the existing Executive order 12866 that governs regulatory planning and review. But the whole reason for regulatory reform legislation is that the Executive orders for regulatory review, issued by every President since President Ford, have not been working well enough. There is widespread consensus that the regulatory process is broken and that firm action is needed. There is widespread agreement that many rules have been issued in violation of the requirements of the Executive orders. Many rules could not be justified if scrutinized under a cost-benefit test. Yet, Executive orders since President Ford have required cost-benefit analysis. The current Executive order of President Clinton, No. 12866, similarly requires cost-benefit analysis, but again, there is nothing to ensure that the agencies will comply. There is no effective judicial review in Senator Glenn's substitute to solve this problem. I also should add that many of the objections that Senator Glenn and others have raised are off the mark or have already been addressed. First, we agree agencies should be required to perform risk assessment and cost-benefit analysis. Second, S. 343 clearly does not override existing statutory criteria. Moreover, S. 343 is not a special interest bill. It does add a petition process to review rules so that the work does get done. I should also note that we did add Senator Glenn's sunshine provision verbatim. Finally, as I have detailed, we agree with Senator Glenn that ``judicial review should be available to ensure that final agency rules are based on adequate analysis.'' The Dole-Johnston compromise meets these principles. The Dole-Johnston compromise merely directs regulators to issue regulations whose benefits justify their costs. But the bill does not override existing law. This should not be a radical idea in the White House or on Capitol Hill. I do not believe that the American people think it is radical to ask that the benefits of regulations justify their costs. Similarly, review of existing rules has been required for almost 15 years under Executive order. Yet, there is a lot of evidence that getting agencies to review existing rules is a lot easier said than done. In the first annual report on President Clinton's Executive Order 12866, OIRA Administrator Sally Katzen admitted that bureaucratic incentives make reviewing rules a difficult undertaking. In discussing the ``lookback'' requirement of Executive Order 12866, Administrator Katzen said: It had proven more difficult to institute than we had anticipated. . . . [A]gencies are focused on meeting obligations for new rules, often under statutory or court deadlines, at a time when staff and budgets are being reduced; under these circumstances, it is hard to muster resources for the generally thankless task of rethinking and rewriting current regulatory programs. After extensive review of the regulatory process, Vice President Gore concluded that ``thousands upon thousands of outdated, overlapping regulations remain in place.'' The long but disappointing record of executive branch review efforts necessitates a legislative mandate. But this must be a real mandate, with real requirements. As redrafted, the Glenn substitute does not adequately address this pressing problem. The Dole bill will bring real change. The Dole compromise reflects many comments and suggestions from numerous Senators of both parties, the Clinton administration, the American Bar Association, and many scholars and legal experts. In sum, the Dole-Johnston compromise strikes a balance between reform that is strong but workable. I urge my colleagues to set aside partisan politics and support the effort to restore common sense to the regulatory process. Mr. President, I yield back the floor.

Mr. ROTH. I think it important we proceed on this matter, because it is an important one, and that we proceed as rapidly as possible. To be candid, I am disappointed that we have not been able to address this problem on the floor.

Mr. ROTH. Mr. President, I would just observe that the additional cost identified by the distinguished Senator from Ohio as applying to the Dole amendment would also apply to the Glenn-Chafee amendment. My reason for stating that is that the threshold for a major rule in the Dole-Johnston amendment has been increased to $100 million. That, of course, is exactly the same as the threshold for the Glenn-Chafee bill. I also point out that there is no question, at least in my judgment, that the Nunn-Coverdell amendment--the amendment offered by the distinguished Democrat from Georgia--would also be offered to amend the Glenn-Chafee bill if it were believed that that legislation was going to successfully move forward. So, in large part, either proposal will face some increased cost. As I say, in my judgment, it would be in somewhat the same ballpark. But I think the important point to understand is the cost of the current regulatory maze of the private sector and local government. It is estimated that the current regulatory requirements cost this country something like $600 billion a year, a very substantial amount. It is further estimated that this roughly breaks down to a cost of $6,000 per American family. Again, a very substantial cost to the typical American family. One of the goals of the legislation that we all on both sides of the aisle are in support of in either amendment, agree that regulatory reform is critically important. One of the principal purposes of our legislation is to get a better bang for the buck. Hopefully, we can do even a better job in providing clean air and clean water, at a lesser cost, because of the regulatory reforms we are proposing. While it may be there may be some additional cost on the Federal Government, that should be more than substantially offset by the benefits and lesser costs that will be experienced by the private sector. For that reason, while it is true that regulatory reform may result in some additional cost to the Federal Government, that is substantially true of both proposals, whether one is supporting the Dole-Johnston amendment or the Glenn-Chafee. I yield the floor. I suggest the absence of a quorum.

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

Mr. ROTH

Mr. ROTH. Mr. President, I rise in support of the Domenici-Bond amendment. In 1980, Congress enacted the Regulatory Flexibility Act in recognition of the fact that Government regulations have a disproportionate impact on small business. In that act we asked Government agencies to take this fact into account in issuing regulations. Today, some 15 years later, it is generally accepted that the 1980 act has been an ineffective response to a growing problem. The pending amendment is an effective remedy. It flashes out what two agencies--EPA and OSHA--must do to take the concerns of small business [[Page S 10141]] into account. It formalizes a dialog between small business and those agencies which, I am sure, will be helpful to both. With this amendment, these agencies can no longer brush aside the legitimate concerns of small business. There is a real difference in how regulations impact a conglomerate and a sole proprietor. Fifteen years ago we notified agencies that they should recognize this difference and gave them discretion. But that discretion has not been exercised as it should have been. So no Congress must respond with more precise direction. This amendment embodies a second major component. It establishes regional small business ombudsmen to solicit and receive comments from small businesses regarding enforcement activities of Federal agencies and periodically evaluate how responsive agencies have been to small business concerns. This amendment impresses me as an appropriate solution to the concerns of small business. The requirements of the pending amendment regarding the issuance of rules pertain only to two agencies and, there, only formalize what should now be taking place--a dialog between small business and the agencies. Mr. President, Government must be made sensitive to the regulatory burden on small business. Small business is the backbone of America--a crucial provider of jobs, a wellspring of entrepreneurial innovation, and a central part of the American dream. I congratulate Senators Domenici and Bond for their efforts to help America's millions of small business owners, their employees, and their families. I urge the adoption of this amendment. Mr. DOMENICI addressed the Chair.