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I noted in reading through these cases here last night from the District of Columbia Circuit that some of these acts actually have a 2-year deadline on effectiveness of certain rules. I think that is too long, but I do think you might simplify the issue and defuse the criticism of your very valid sort of tell-and-wait-I think that is the shorthand for 626, tell Congress and then wait. We think you might want to just consider an across-the-board 90-, 120-day bar on effectiveness, and the present system would then work.

If you internally wanted to adopt procedures that speed up consideration, you can meet that, but I will say this. I wouldn't let what you have got there bog down the bill, because it is complex and lengthy, and I think you would get the same result under our suggestion and you don't have to argue about it.

Senator GRASSLEY. My last point would be in regard to you have the benefit of the last panel to have heard opposition and those points that the opposition makes to S. 343. Which of those that you have heard, and I don't suppose you would have to name them all, would you feel would have absolutely no merit?

Mr. CYNKAR. Well, as I said when I opened, Senator, I think the fundamental antagonism to these analytical techniques and the concern about burdens to agencies, and so forth, I think are not only not merited, but so far out of the mainstream of thinking that I would not-those views are articulated by thoughtful people, but I would say that their views are quite out of the mainstream, and so I would reject those criticisms.

Other smaller concerns concerning how judicial review is written, and so forth, which actually are not small concerns, but serious ones, I would say have some merit and the subcommittee should take a look at them.

Senator GRASSLEY. OK, and you, Mr. Freeman?

Mr. FREEMAN. I will say this. I am coming essentially from where Bob is coming, and I will add a couple of thoughts. One of the themes that underlays both of those witnesses' testimony was that we are giving the agency an awful lot to do and we are going to put a real strain on their resources, and so a lot of good things that need to be done won't be done. I guess that goes to who establishes priorities and how can they establish them.

In S. 1080, you put in something that you didn't put here with regard to agency review of existing rules. S. 1080 had a provision which required the agency to establish a game plan for periodic, methodical review of all of its existing rules that might be major rules. Now, that was the best you could do at the time.

It seems to me if you went back to that and you thought, we will put that in here, but we will also require the agency, once it gets that scheme in place, to give it to the President and we give him the authority-and you will see in my prepared testimony that the ABA would urge you then to give the President express authority which he already has constitutionally, but to emphasize its importance, to require the agency to add to or subtract from those rules, and actually to change the rules where they were not meeting the criteria of the statute. That is not necessary, but it would be very helpful.

Second, at the same time the agency and the President did all that, if they came over here and gave a report to you about what

they are intending to do, again, that is part of tell-and-wait. You can have oversight hearings where I think you could substantially influence that agenda.

Coming back to the other point that they were voicing, and that is that everybody in the world is going to come in and petition these agencies to review rules because they are major and that is going to swamp the agency, I think I have given the answer to that. People already have that existing right under the APA, but it is meaningless because we don't have a deadline. I think the fix that I suggested of simply going back to the APA solution would defuse that argument and make it a nonstarter.

Mr. CYNKAR. Senator, if I could add one thing that George's observation piques in my mind, another point that I would disagree with them on in terms of agency accountability-and if you remember, Mr. Risalvato, I think is how you pronounce his name, from last Wednesday made the point about the statute of limitations on the Reg Flex Act, and so forth.

I think part of the reality and the judgment that you saw in 1080 on all the various forms of review was they each had their role, but none of them was perfect. When you are talking about judicial review, there are concerns about what that method is good for, but at bottom what you have is individuals who feel that the Government is behaving unlawfully with them and they can protect their own interests and go to court. That is a good. That is empowering individuals in dealing with their government, and I think that is an important point to be made.

Mr. FREEMAN. And I will add to that. On the judicial review thing, in our testimony we say that we thought that while an agency's decision on whether or not to categorize a rule as major or nonmajor ought to be subject to judicial review, we think that providing interlocutory review is really meaningless because nobody can, in the practical world, meet that clear and convincing evidence test.

We thought a much more effective way would be to expressly make the agency's decision on classification reviewable in the context of review of the rule, and we gave you suggestion language based on the Clean Air Act on how to put teeth in that and make it effective.

Senator GRASSLEY. Well, I thank you both very much. Thank you for participating, and we look forward to working with you as we develop the bill.

The hearing is adjourned.

[Whereupon, at 11:42 a.m., the subcommittee was adjourned.]

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FEBRUARY 2 (legislative day, JANUARY 30), 1995

Mr. DOLE (for himself, Mr. NICKLES, Mr. BOND, Mrs. HUTCHISON, Mr. MURKOWSKI, Mr. LOTT, Mr. COCHRAN, Mr. HATCH, Mr. DOMENICI, Mrs. KASSEBAUM, Mr. COATS, Mr. ABRAHAM, Mr. INHOFE, Mr. SMITH, Mr. SANTORUM, Mr. THOMPSON, Mr. WARNER, and Mr. KYL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

FEBRUARY 3 (legislative day, JANUARY 30), 1995

Ordered referred jointly to the Committees on the Judiciary and Governmental Affairs

1

A BILL

To reform the regulatory process, and for other purposes.

Be it enacted by the Senate and House of Representa

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "Comprehensive Regu

5 latory Reform Act of 1995”.

2

1 SEC. 2. ANALYSIS OF AGENCY PROPOSALS.

2

(a) IN GENERAL.-Chapter 6 of title 5, United

3 States Code, is amended by adding at the end the follow

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"(1) the term 'agency' has the same meaning as

in section 551(1) of this title;

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3

President on the ground that the rule is likely

to result in-

"(I) a substantial increase in costs or prices for wage earners, consumers, individual industries, nonprofit organizations, Federal, State, or local government agen

cies, or geographic regions; or

"(II) significant adverse effects on competition, employment, investment, productivity, innovation, the environment, public health or safety, or the ability of enterprises whose principal places of business are in the United States to compete in domestic or export markets;

"(B) the term 'major rule' does not include

"(i) a rule that involves the internal revenue laws of the United States; or

"(ii) a rule that authorizes the introduction into commerce, or recognizes the marketable status, of a product;

"(5) the term 'benefit' means the reasonably identifiable significant benefits, including social and

economic benefits, that are expected to result di

rectly or indirectly from implementation of a rule or

an alternative to a rule;

⚫S 343 RCS

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