William Roth

Mr. ROTH

Mr. ROTH. That is the main point I have been trying to make, that these specific exceptions are not necessary. If you want to put it on the basis of the basic rule, fine. But I will also point out that, in our specific legislation, we have waivers both with respect to cost- benefit and with respect to risk assessment. So that is the reason we do not think any of these special cases are necessary.

Mr. ROTH. I point out that the Senator is making my argument. That legislation applies, obviously, to S. 343. So what you are, in effect, saying is that none of these exceptions that have been discussed in the last 3 days are necessary because they are already covered by the Administrative Procedure Act.

Mr. ROTH. Without losing my right to the floor.

Mr. ROTH. That is correct.

Mr. ROTH. That is correct.

Mr. ROTH. I am happy to yield.

Mr. ROTH. In just a moment. Again, I want to point out that, in the future, a situation can arise under S. 1001 where there is a threat to health or safety, or an emergency and, yet, there is no exception, no waiver permitted under S. 1001. The important point, of course, is that this situation has been addressed in S. 343.

Mr. ROTH. My question is--

Mr. ROTH. No.

Mr. ROTH. An individual can go into court and ask that the analysis be made. But that will, in no way, terminate the rule. So the important fact is that we are protecting the American people, the American public. And where there is a health problem, an imminent threat, or whatever, an exception to the rule is allowed. So what we have done in S. 343, in contrast to S. 1001, has anticipated this need. So, again, the distinguished Senator from Ohio made many complaints that, as I said, seem curious to me. He complains that the emergency is exempted and S. 343 is insufficient. Yet, his bill, S. 1001, has no exemption at all. The question is, why? Is it not needed? Again, he complains that S. 343 has no individual listing on the E. coli or mammography rule. Yet, his bill, S. 1001, has no exemption at all. Why? It is not needed.

Mr. ROTH. Basically, that is correct. They are expected to go ahead and make a cost-benefit analysis the year following. They are required to make it. But that, again, in no way terminates the rule. The rule continues so people are protected. That is what the whole point of the exception is.

Mr. ROTH. Yes, that is true.

Mr. ROTH. The agency has that authority under our legislation, that is correct.

Mr. ROTH. Yes.

Mr. ROTH. No, no, that is not correct. Again, I will reread what I read twice. It says, ``may become effective without prior compliance * * *'' That is critically important. What we are trying to anticipate in the language on page 25 of S. 343 is making certain that where a situation arises because of cancer, because of heart disease, or whatever it may be, the rule can become effective without making the cost-benefit analysis if the agency finds that conducting such analysis is impractical due to a health [[Page S 9864]] threat. Our language is generic. It anticipates that there may be many different situations. That is the reason we do not want to get into spelling out exception by exception.

Mr. ROTH. Yes, I will be happy to yield for a question.

Mr. ROTH. Mr. President, I think it is critically important to understand that the argument made by the proponents of the pending amendment is that a future anticipated regulation on mammograms would be delayed by compliance with S. 343, and that during such delays, lives would be lost. In order to address such issues, the majority leader last Tuesday offered an amendment, which was adopted by the Senate, that provides that in exactly those circumstances described by proponents, the relevant agency may issue the rule first and allow it to take effect and, thereafter, finish compliance with S. 343. Through the Johnston amendment, adopted today, the agency would have 1 year to finish its compliance. The language of that amendment says that a rule, such as the mammogram rule, ``may become effective without prior compliance''--Let me read that again: ``may become effective without prior compliance if the agency, for good cause, finds that conducting cost-benefit analysis is impractical due to a health threat that is likely to result in significant harm to the public.''

Mr. ROTH. Well, we voted yesterday April 1 to make those effective under the Johnston amendment.

Mr. ROTH. The point I would like to make is, yes, there are going to be serious health, safety and other problems. But the important difference between the legislation before this committee and the amendment being proposed by the distinguished Senator from Ohio is that there is a waiver that anticipates what might happen in the future. That is a critically important difference. Today it may be E. coli, tomorrow it may be heart disease, a third day it may be something else. But under our legislation, we have anticipated that situation by having a generic exception that covers those situations. That is the reason it is not necessary to spell out each of these exceptions as being proposed, except for public relations reasons.

Mr. ROTH. But I think the complaint, I will say, is the time that would take in making the cost-benefit analysis. Let me ask you this. Does your legislation exempt E. coli? Does it have any exemption covering E. coli?

Mr. ROTH. That is the point I am making. Our legislation, S. 343, on page 25 has a specific exception to cover these situations. There is no such exception, no such waiver in S. 1001. If I am wrong, I ask for the page and line number.

Mr. ROTH. The question I am raising, if you have a situation arise where it is an emergency, a safety threat or a health threat in the future and it is impractical to make a cost-benefit analysis, where is the exception in your legislation?

Mr. ROTH. What about next year under your legislation?

Mr. ROTH. I would rather continue just for the moment. I will be happy to yield in just a few minutes. I think it is extremely important to understand that in the Dole-Johnston legislation, on page 25, we have a specific exception to cover the case of emergency health and safety from the general rule of requiring a cost-benefit analysis. Again, I find no such exception in S. 1001. As a matter of fact, I look on page 5 of S. 1001 and it says that: The term ``rule'' shall not include-- (A) a rule of particular applicability that approves or prescribes for the future rates, wages, prices-- So forth and so forth. (B) a rule relating to monetary policy proposed or promulgated by the Board of Governors of the Federal Reserve System or by the Federal Open Market Committee; (C) a rule relating to the safety or soundness of a federally insured depository. It goes on with various housing, foreign banks, so forth. (D) a rule issued by the Federal Election Commission or a rule issued by the Federal Communications Commission pursuant to section 203 of the Communications Act of 1934. Those are the exceptions to the rule, in contrast to our legislation where we specifically provide a generic waiver. Nor do I find anywhere, and I again ask the distinguished Senator from Ohio, where there is any kind of exception in the case of E. coli or breast cancer in the legislation proposed by him.

Mr. ROTH. Let me----