S. 343

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S. 343, The Regulatory Reform Act:

"Title III of H.R. 9 became the Risk Assessment and Cost-Benefit Act, H.R. 1022, which was the flagship regulatory reform bill proposed during the first year of the 104th Congress. H.R. 1022 would have subjected all new rules to cost-benefit analysis and risk assessment. The provision passed the House with a 286-to-141 vote, but it was strongly opposed by the Bill Clinton administration.

"Then-Majority Leader Bob Dole (R-Kan.) and Senator J. Bennett Johnston (D-La.) introduced a companion bill out of the Senate Judiciary Committee, S. 343. That bill would have eliminated, for example, the Delaney clause that required a zero cancer risk for additives used in processed foods.

"Johnston, however, steadily retreated from his ardent support for enforceable process reforms. In the end, S. 343 was severely watered down. Unable to cut off debate by summoning the sixty votes needed for cloture, Dole pulled the bill from consideration.

"One of the contentious points in the bill concerned its enforceability. The administration wanted language that would allow the agencies to assert that benefits justified costs without having to prove it. Most reformers wanted stronger language that would require that benefits outweigh costs. Some even argued that incremental benefits should outweigh incremental costs. A major problem with cost-benefit analysis, as one EPA employee confidentially explained, is that 'you're putting me in charge of deciding whether or not a rule should go forward. . . . I'll tell you, I can make the benefits greater than the costs almost every time.'

"That bureaucrat's remarks explain why another contentious point of debate over S. 343 concerned judicial review. A strong judicial review provision might subject analyses and assessments by regulators to a de novo or another strict judicial review standard. Agencies would have had a strong incentive to put forth reasonably accurate cost estimates or risk having their rules judged invalid. While not ensuring 'good' regulations nor wholly unbiased estimates, S. 343 would have minimized the bias problem and given the regulated community a tool with which to challenge regulatory actions. But S. 343 was amended to allow rules to stand as long as the analyses and assessments on which they were based were not 'arbitrary and capricious, or an abuse of discretion,' which is an almost impossible standard to prove."[1]

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