Rob Portman

Mr. PORTMAN

Mr. PORTMAN. Mr. Chairman, I thank the gentleman for yielding to me. A couple of points in response to the gentlewoman's comments regarding the effective date. It should be made clear, Mr. Chairman, that in last year's legislation, which passed the Government Operations Committee by a vote of 35 to 4, the effective date was October 1, 1995. This was, of course, prior to the Contract With America, prior to the new Congress. And this was a piece of legislation which was very similar to the H.R. 5 now before us. Again, it was a strong bipartisan vote of 35 to 4. The reason October 1 was chosen is precisely what my friend from California has said, which is, it would take that long for the Congressional Budget Office to be prepared to do the extensive analysis which is required under this legislation. I would say, in addition, that I have had direct personal conversations with CBO as recently as in the last 2 weeks with regard to this very issue. And they, in fact, would probably prefer the Senate version of the bill, which provides for an effective date of January 1, 1996. The House version, again, is October 1, 1995. I would say finally that this is also very important so that our committees, authorizing committees here in the House and so that the Federal agencies can be prepared to actually respond to the new requirements in this legislation, which are so important to the accountability that is central to this act.

Mr. PORTMAN. Mr. Chairman, will the gentleman yield?

Mr. PORTMAN. Mr. Chairman, let me say that I again thank the gentleman from Pennsylvania. We worked closely on some other amendments in the process, including amendments to title I, and I appreciate the gentleman's withdrawing his amendment at this time.

Mr. PORTMAN. Mr. Chairman, will the gentleman yield further?

Mr. PORTMAN. Mr. Chairman, I appreciate the gentleman's yielding. Very briefly, we did have a good discussion on this issue previously in response to the amendment offered by the gentleman from California [Mr. Waxman] which was not accepted. I think there are two issues here. No. 1, there is a process by which through the existing Administrative Procedures Act, in a notice and comment period in the private sector, individuals would have an opportunity to be heard. The second point is that we do in fact provide for a special place in a sense for State and local governments at the table, but that is because they are the coregulators of the very Federal regulations that are subject to this rulemaking. So I think the response is, frankly, that there is already in the process the appropriate. We endorse that. But we did not need to carve out a special requirement for the agencies with respect to this. We did so for State and local governments, again in the sense that they are the coregulators and are directly affected by these regulations.

Mr. PORTMAN. Mr. Chairman, will the gentleman yield?

Mr. PORTMAN. Mr. Chairman, I appreciate the gentleman's amendment. It is a good amendment. It is the kind of clarification that we need. I would also like to thank the gentleman from South Carolina [Mr. Graham] for working closely with the sponsors of the legislation and with the chairman of the committee to come up with a proposal that I think fits with the broader scheme of H.R. 5.

Mr. PORTMAN. Mr. Chairman, will the gentleman yield?

Mr. PORTMAN. I thank the gentlewoman for yielding. Mr. Chairman, I would like to comment on my colleague from Ohio's amendment. I would like to thank the Rules Committee for helping us to perfect the legislation. This is a good example of that. It provides a very important feedback loop back to the authorizing committees from the agencies that I think is really critical in order for the structure of H.R. 5 to work properly, and I congratulate the gentlewoman.

Mr. PORTMAN. Mr. Chairman, will the gentlewoman yield?

Mr. PORTMAN. I thank the gentleman from New Mexico.

Mr. PORTMAN. I yield to the gentleman from New Mexico.

Mr. PORTMAN. Reclaiming my time, I thank the gentleman. Again, I think we have done this in a way where we end up with the kind of teeth in the legislation, H.R. 5, many of us on this side feel is necessary to make sure these requirements are carried out.

Mr. PORTMAN. I yield to the gentleman from California.

Mr. PORTMAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, first let me say in response to the comments from my colleague from California that I appreciate him bringing this issue to the floor, for bringing it to the attention of the sponsors of the legislation. I think we worked responsibly with the gentleman from Virginia [Mr. Moran], with the gentleman from California, and others to try to address at least the major concerns that have been raised on the floor, and I think it was a healthy process. I happen to believe in the end we have ended up with the right mix. We have judicial review, which I think is necessary to put teeth into agency requirements in title II. Just to remind my colleagues again, these requirements are less burdensome on the agencies than those found in the Executive order which is currently in place. I would also just very briefly talk to the issue of the standard which the courts will apply that the agency action must be arbitrary and capricious standard, which is very high. I quote from Judge Scalia with regard to the issue the gentleman raises: The scope of review under the ``arbitrary and capricious'' standard is narrow and a court is not to substitute its judgment for that of the agency. This is especially true when the agency is called upon to weigh the costs and benefits of alternative policies since such cost-benefit analyses epitomize the types of decisions that are most appropriately entrusted to the expertise of an agency. I think that is very important, and I think I would agree with the gentleman from California, we do not want to needlessly tie things up in court. We want to defer to the agency expertise. The gentleman has raised a number of important concerns, and I believe given that standard which was just quoted, which is the common practice of the courts, that we would not be in such a position.

Mr. PORTMAN. Mr. Chairman, I thank the gentleman for yielding, just briefly to rise in support also of the amendment. It is a very good amendment. We have had on the floor here an interesting debate the last several days about the issue of judicial review. It came up in the context of the exemptions to the legislation, but it really went at some of the core issues of this act. I think the gentleman from Virginia would agree that judicial review is very important in order to ensure that there are teeth in the provisions in title II, to ensure that the agencies actually carry out the provisions which again are less burdensome on the agencies than the current executive order requirements that President Clinton issued in October 1993. I would say that this is an important clarification of the kind of judicial review that we had intended to have in this legislation. It is our view that this is not an issue that necessarily needed to be resolved by amendment, but if there is any misunderstanding or any clarification needed, I think it is important to do so. This specifically addresses concerns raised on the floor by the gentleman from Pennsylvania [Mr. Kanjorski]. The gentleman from Pennsylvania [Mr. Kanjorski] raised the issue that you could possibly have a stay on an injunction in the case of a regulation and it would keep the regulation from going forward. This language I think very clearly provides that such a stay would not be permitted, that there would not be that kind of injunctive relief provided under the judicial review that is provided under H.R. 5. I thank the gentleman for clarifying that point and for addressing a legitimate concern which was raised on the floor.

Mr. PORTMAN. Mr. Chairman, will the gentleman yield?

Mr. PORTMAN. Mr. Chairman, I thank the gentleman for yielding to me. Mr. Chairman, I would echo the gentleman's comments. I am very pleased to support the amendment. Let me say briefly, this amendment is consistent with language that is in the FAIR Act, which I believe is the foundation for the legislation, H.R. 5, before us today, and have said that on many occasions, as the gentleman knows. It is also consistent with the Executive order, and we have had lots of discussions about the Presidential Executive order that is currently in place. All agencies are meant to abide by the requirements in this Executive order. It goes far further than title II of this act, which sets up the requirements for our Federal agencies in this legislation. Mr. Chairman, let me give a couple of examples. H.R. 5 only applies to rules having an impact of $100 million or more annually. The Executive order currently in place by President Clinton applies not only to rules having an impact of $100 million or more, but in addition all rules affecting in a material way productivity, competition, jobs, environment, State and local governments, even if less than $100 million. Therefore, I would just make the point clearly here that yes, the gentleman's amendment is a good one. The least burdensome manner in which the agencies can regulate is a good idea. It is a sound idea. It is part of FAIR. It is also part of the Executive order. I would say, though, in addition, Mr. Chairman, that the Executive order in fact goes even further than the gentleman's amendment, and we will be accepting this amendment happily, but not picking up all of the requirements and additional burdens on the regulators that is in the Executive order, the Clinton Executive order of October 1993. I am happy to accept the amendment.

Mr. PORTMAN. Mr. Chairman, will the gentleman yield?

Mr. PORTMAN. Mr. Chairman, reclaiming my time for a moment, I think what we have done in this legislation is entirely consistent with the executive order and the current process. State and local governments are coregulators. It is appropriate that they have the input that is provided in the title. Again, although I think the intent of the gentleman's amendment we all agree with, we think there currently is the ability for citizens to have the kind of input that the gentleman desires. Again, we must reluctantly oppose the amendment.

Mr. PORTMAN. I yield to the gentleman from California.

Mr. PORTMAN. Mr. Chairman, I rise in opposition to the amendment. Mr. Chairman, I have to rise in reluctant opposition to this amendment, having accepted the last amendment from the gentleman from California [Mr. Waxman], which I thought was a good clarifying amendment. The chairman of the committee and other Members on this side who have been active in this process have looked carefully at this amendment. We are reluctantly opposing it. We certainly think input from private citizens to develop meaningful regulations makes a lot of sense, and that is exactly why there is a process currently in the legislation to allow citizens to participate, call a notice and comment period for the promulgation of regulations. every citizen has a right to submit comments and participate in this regulatory process. Reluctantly, because we agree on the intent of the amendment but we think it is not necessary to further amend this title with regard to this second amendment from the genteleman from California [Mr. Waxman], we must rise in opposition to it.

Mr. PORTMAN. I thank the gentleman from California. This is an important clarifying amendment. We have worked this out, and I want to congratulate the gentleman on clarifying an important aspect of the legislation.

Mr. PORTMAN. Mr. Chairman, will the gentleman yield?

Mr. PORTMAN. Mr. Chairman, I move to strike the requisite number of words. I just rise to support the efforts of my colleagues, the gentleman from New Mexico [Mr. Schiff], my colleagues on the other side including the gentlewoman from Florida [Mrs. Meek], to offer the strengthening amendment to the bill. I think it clarifies and strengthens what we are trying to do here. It should be noted there have been five major studies produced by ACIR in the last decade on this very issue of unfunded Federal mandates. I think theirs is certainly the professional organization in a position to do this job. It is made up of 26 members of all levels of government, local, State, and Federal. I think the gentlewoman from Florida [Mrs. Meek] is to be commended for raising this issue. I think in the end, as the vice chairman has noted, this will save the taxpayers money. We will end up with a better product. I also will say I, too, have been in discussions with ACIR. I think they are properly motivated and properly focused on the timeframe that the chairman, the gentleman from Pennsylvania [Mr. Clinger], has noted. So I have every confidence they are going to come through. I would also say the Senate has approved a very similar amendment so that the Senate and the House bills will be, if not identical, very similar on this subject. ACIR is going to be given the responsibility and the authority to do this job.