Rob Portman

Mr. PORTMAN

Mr. PORTMAN. Mr. Chairman, that is far more extensive than anything in title II to this legislation. Let us be clear. Anything in this regulation and the database may or may not be covered by this. It has to be over $100 million to be covered by title II, but any regulation that could possibly be covered by title II, which again is far less broad than the executive order, and in fact it is 925 words versus over 6,000 words, would be subject to the existing Executive order. Mr. Chairman, then the question becomes should the database, as an example, if it were in fact covered under either the Executive order or title II, and it is necessarily under the Executive order currently in place, if it is going to be covered by title II, should the agency, in this case the Department of Justice, as I understand it, be required to comply with the Clinton Executive order? Let me ask the gentleman a question. Is the gentleman from Pennsylvania [Mr. Kanjorski] saying that the Executive order is not appropriate? This asks for a written statement of the costs and expenses. Is that not appropriate?

Mr. PORTMAN. Mr. Chairman, just to be very clear, I would say to the gentleman from Pennsylvania [Mr. Kanjorski], because the gentlewoman from New York [Ms. Slaughter] raised this point earlier, this is not a question of applying this legislation in terms of the point of order to the existing statute which is in place, which in turn has the promulgation of the database. We are talking about the Federal agency action. That comes in title II of this legislation. Let me be very clear, Mr. Chairman. We mentioned this last night in the debate. If in fact the database is going to be subject to the very limited requirements in title II of this legislation, that means necessarily that such regulations are already subject to the Presidential Executive order issued by President Clinton on October 4, 1993. I just counted up the words a little while ago. The Clinton Executive order is 6,020 words. It is far broader, far more extensive, far more comprehensive than anything in title II.

Mr. PORTMAN. I do not know why you would not want that to be enforced. The fact is the Executive order currently in place goes well beyond what we are asking for in this legislation. If it is routinely waived, then----

Mr. PORTMAN. Mr. Chairman, the gentleman's statement was that the agency action cannot be challenged. It indeed can be challenged. What this does is put into statute the written assessment of the cost of agency action.

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

Mr. PORTMAN. Absolutely. Anyone can challenge an agency action, absolutely.

Mr. PORTMAN. Mr. Chairman, every individual has that right now.

Mr. PORTMAN. Mr. Chairman, reclaiming my time, I think that is precisely why we need to have it in statute. I thought there was an agreement in this body, a consensus that the costs and benefits of legislation ought to be known, and in addition, that when new regulations were promulgated that agencies ought to have a requirement, as the Executive order provides, and in fact it goes much further than our bill, that the agency provide an assessment of what the costs are going to be. That is all we are asking here.

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

Mr. PORTMAN. Mr. Chairman, in response to the concerns of the gentleman from Pennsylvania [Mr. Kanjorski], let us back up a minute and talk about what the real subject of the debate is. No. 1, Mr. Chairman, there is no point of order against the database. I think that should be made clear.

Mr. PORTMAN

Mr. PORTMAN. If the gentleman will yield further, not only will Congress have that issue before it and Congress will be able to debate that issue, much as we have debated the issues tonight, but the committees under this legislation are specifically required to consider the public-private ramifications of any new mandate legislation that comes through the process. In many respects, I would say to the gentleman from California, this bill strengthens existing law with regard to that public-private distinction.

Mr. PORTMAN. Mr. Chairman, I think it is important to clarify a statement made by the gentleman from South Carolina [Mr. Spratt], and also by the gentleman from California [Mr. Waxman] with regard to the options we would be facing. The two options that the gentleman states and the option Mr. Spratt stated, were, No. 1, to fully fund the mandate, and, No. 2, not to impose the mandate. Again, to be very clear, there is also a third option. The third option is for Congress to exercise its will on an issue of importance to the Nation, and that is to go ahead and impose the mandate. I think sometimes I feel as though we are not talking about the same legislation. But it is very clear in this bill, and I think it is very important in the context of Mr. Spratt's amendment.

Mr. PORTMAN. Mr. Chairman, I move to strike the requisite number of words, and I rise in opposition to the amendment. Quickly, to clarify points made by the gentleman from California and respond to the gentleman from Texas on the Nuclear Regulatory Commission again, it says it will be very difficult to mandate in the future. In fact, it says impossible in some cases. I do not know where that comes from. Again, this allows us to have a cost estimate, allows us to have a debate on the floor, a vote up or down. It will not be an impossible task simply to have a majority of this body simply consider whether the new mandates make sense. With regard to Nuclear Regulatory Commission, it is very clear under title II of the bill it is in fact an independent agency and thus is exempt. That is under title II of the bill. That point was made previously. With regard to the legislation itself and the existing exemptions, and this is in response to the gentleman from Texas's earlier concern about emergencies, there is a specific exemption for emergencies, and that is found in section 4. Finally, as the gentleman from Colorado [Mr. Schaefer] said previously with regard to the NRC, they certainly currently have statutory authority to react to an emergency. So I think, Mr. Chairman, the points that have been raised, although they are important and that is a very important issue that has been addressed, I think this legislation is a measured approach. I say to the gentleman from California, it is not draconian. It does allow us to mandate in the future. We just have to be thoughtful about it.

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

Mr. PORTMAN. If the gentleman will continue to yield, I would say currently when an authorizing committee such as your own might consider new legislation, there is no requirement to consider the very issue that the gentleman from South Carolina [Mr. Spratt] raises. Where this bill improves this process is that it specifically requires the committees for the first time to consider in passing new mandates the issue of the competition between the public and the private sector.

Mr. PORTMAN. If the gentleman would yield further, I would say it strengthens existing law to the extent that is not currently considered by the authorizing committees.

Mr. PORTMAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, let me just quickly correct a couple of statements that my colleague, the gentleman from California, made with regard to this legislation to make clear what we are doing here this evening. He said that the options would be, No. 1, to pay the public utilities; or, 2, to not have the mandate take effect as the chairman of the committee has noted. This evening, and many times in the debate on Friday, that is in fact not the sole option before this Congress under this legislation. Let me be very clear. This forces a cost accounting which is not currently available. It then forces a debate on the floor as to the new unfunded mandate and finally forces a vote. It is a majority vote. So by a majority Congress could continue to exercise its judgment and continue to have the mandate take effect with or without funding. Another correction needs to be made, and that is with regards to existing laws where regulations are not yet promulgated. The gentleman from California said that the unfunded mandate process would be triggered by that. That is not correct. Existing laws are not covered by this legislation in terms of the point of order being raised against unfunded mandates. New regulations, which would be promulgated pursuant to existing statutes, would not be covered by the point of order on the floor of the House that we have talked about many times now. There are certain requirements on the Federal agencies. They are reporting requirements as to the costs, again of the new regulations being promulgated, if they are above a threshold of $100 million. I think it is important, Mr. Chairman, to continue to emphasize that this bill is not the broad-based bill that the opponents to the legislation or the proponents of this amendment and other amendments which exempt whole areas of the law would have us believe. This is a carefully crafted measure. This is a measured response. This is something that gives us information and accountability.

Mr. PORTMAN. Mr. Chairman, reclaiming my time, to reclarify again, because we are beginning to fuzz the lines between the point of order and the regulatory requirement. The regulatory requirement is simply a requirement that before new regulations are promulgated, there be an assessment of the costs. Those costs will go into a written report which will be provided to the OMB and the Congress. It seems to me that is a very sensible approach. It is actually not even as general and broad as the current Executive order that President Clinton has issued to the Federal agencies in these sorts of situations. All we are asking is there be judicial review of those assessments of cost. Let us be very clear on that. I understand now the gentleman's point, which you had not made previously, which is it really is the judicial review section that troubles you. That, of course, will be subject to considerable debate, I believe, later this evening or perhaps tomorrow. But with regard to judicial review, it is only as to the agency action, and, again, the agency action is information on an assessment of the costs and benefits.

Mr. PORTMAN. Mr. Chairman, I yield to the gentleman from California [Mr. Waxman].

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

Mr. PORTMAN. Mr. Chairman, reclaiming my time, let me be very clear: This new legislation does not apply to the Clean Air Act, it does not apply retroactively, it applies prospectively only. The discussion here on this amendment is as to new mandates that might arise under clean air and other environmental status. Again, to emphasize the point, the Clean Air Act which was passed by this Congress by a majority vote would not be covered under the provisions of the point of order that we discussed earlier.

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

Mr. PORTMAN

Mr. PORTMAN. Mr. Chairman, I guess we need to make clear in this debate that what we are talking about is a point of order that could be raised against a new mandate, a new mandate in a reauthorization bill. This legislation does not apply retroactively, it only applies prospectively.

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

Mr. PORTMAN. I am happy to yield to the gentlewoman from Colorado.