William Roth

Mr. ROTH

Mr. ROTH. Mr. President, I would like to announce that the Senate Committee on Governmental Affairs will hold a series of hearings on regulatory provide a forum for various Senators to speak on the regulatory moratorium and regulatory reform proposals. The second hearing, on Wednesday, February 8, will provide a forum for various witnesses to discuss the problem of irrational regulations and the problems of the rising costs of regulation, the cumulative regulatory burden, and systematic problems with the regulatory process. Subsequent hearings will cover the principles for reforming the regulatory process, including cost/benefit analysis, risk analysis, market incentives, periodic review of existing regulations, regulatory accounting, property rights, administrative process costs, and centralized review of regulations. The hearings will be held in SD-342, from 9:30 a.m. to 12:30 p.m. For further information, please call Paul Noe at (202) 224-4751. committee on energy and natural resources

Mr. ROTH

Mr. ROTH. Mr. President, I rise to emphasize the critical need for a smarter, more cost-effective approach to Government regulation. Today, I introduce legislation intended to generate constructive debate on this important issue. As chairman of the Committee on Governmental Affairs, I want to build consensus on how to regulate smarter among all engaged in the growing debate on regulatory reform--including the general public, businesses of all sizes, environmental and public interest groups, academia, State and local governments, the White House, and my colleagues on both sides of the aisle. Throughout my career, I have been committed to protecting the environment, health, and safety. I reaffirm that commitment today. We should not forget that many regulations provide important protections and benefits to the public. Let there be no mistake--we need a clean environment, safe workplaces, and safe medications. Mr. President, it is clear that the regulatory process is broken. Too many regulations impose undue costs, and the regulatory process itself has become too cumbersome, unresponsive, and inefficient. The cumulative cost of regulation is enormous and is rising at an alarming rate. The annual cost of Federal regulation was conservatively estimated at about $560 billion for 1992; it could exceed $660 billion by the year 2000. About three-fourths of the cost increase is expected from upcoming risk regulations, such as environmental, health, and safety standards. The rising cost of regulation affects us all--businesses large and small, governments at all levels, and the American worker and consumer. Regulations drive up prices and stifle wages, innovation, and economic growth. Although the direct costs of regulation generally are imposed on businesses and governments, these costs ultimately are passed on to the American consumer through higher prices, diminished wages, increased taxes, or reduced government services. The cost of regulation has been estimated at about $6,000 per year for the average American household. The recent elections brought to this Congress historic change, an with it, and unprecedented opportunity to reform the regulatory process. However, it is important that we take a balanced approach to reform. In our zeal to implement substantial changes, we should act carefully so that we truly perfect needed Government programs--not cripple or stymie them. Building a smarter regulatory process will require the expertise and consensus of those on all sides of the regulatory reform debate. Together, we should strive to achieve desirable social goals in the most cost-effective manner practical. My goal is to forge a consensus on effective legislation to make the regulatory process more efficient and effective. The bill I am introducing today is a first step in this direction, but it requires further debate and deliberation. It may be necessary to add further provisions, delete some, or revise others. I will chair a series of hearings, beginning on February 8, to provide a forum to discuss the broad principles of regulatory reform--those reflected in this bill as well as others we have not yet addressed. My bill will require Federal agencies to seriously consider whether the benefits of regulating justify its costs. When regulating risks, regulators will be required to make realistic estimates of risk based on the available data, and disclose to the public any assumptions necessary to measure those risks. The bill also will encourage agencies to base their priorities on the relative risks posed by various substances, activities, and products to achieve the greatest overall reduction in risk at the least cost. More generally, my bill will require agencies to review existing regulations, to be sensitive to the cumulative regulatory burden, and to select the most cost-effective, market-driven method practical. These are but some of the principles to be discussed at the hearings on regulatory reform. We can reinvent the regulatory process to ensure that when agencies choose to regulate, they will do so in a more effective and less costly manner. We can reduce the burden on governments, businesses, and the public, and still ensure that important benefits and protections are provided. We cannot afford to ignore the need to regulate smarter. I ask unanimous consent that the legislation I introduce today be printed in the Record.

Mr. ROTH

Mr. ROTH. Mr. President, in the course of deliberations on this legislation which are now in their third week, some question has arisen regarding the application of title IV to the provisions of title I. As the chairman of the committee that reported S. 1, I wish to make clear to my colleagues how these two titles relate. Title IV deals with the subject of judicial review. Many have summarized its provisions simply as no judicial review. But I would like to draw attention to the exact language of the provisions, particularly to the reference in section 401 that does limit judicial review over certain issues arising under ``this Act.'' That reference to ``this Act'' means only ``this Act'' and not the subsequent legislation that may be processed under the procedures established in title I. Yesterday, we adopted the Byrd amendment to title I, which makes reference to mandates becoming ineffective in certain circumstances. Some may be concerned that because of title IV there will never be a final or objective adjudication of the question of whether a mandate is effective or not. That concern arises out of a misunderstanding of title I and title IV. Under title I we establish a process for Senate consideration of mandates legislation. So all that title I is is a process. Normally, Senate process does not give rise to judicial review. Title IV merely codifies that history in this context. It refers only to S. 1--``this Act''--and not to legislation that will be processed under the procedures in S. 1. Under S. 1, subsequent mandates legislation will provide for funding levels, how certain contingencies are to be addressed, which agency is designated as the responsible agency for determining whether funding of the direct costs of the mandate is adequate, and so on. Agency action under that subsequent legislation may be subject to judicial review since only S. 1 is, under title IV, not subject to judicial review. If an agency wrongly determines that a mandate is effective or ineffective, title IV of S. 1 does not preclude judicial review. I hope that this clarifies the application of title IV to this legislation and to subsequent mandates legislation.

Mr. ROTH. Mr. President, I strongly oppose this amendment, which would sunset the reforms of this legislation in the year 2002. There may be changes we might want to make to the statute, after it has been in effect a few years. But requiring that it is be sunsetted is another matter entirely. This is not a Government program, whose value might become obsolete in the future. What we are talking about here mainly is establishing a process for congressional consideration of certain types of legislation. I greatly doubt that the premises underlying this bill will become irrelevant in the foreseeable future. We should always be cognizant of the potential harm of unfunded mandates, not just for a few years. What makes this amendment additionally objectionable is what it does to the chances of ratifying a balanced budget constitutional amendment. It greatly hinders that likelihood. The Governors and State legislators have spoken loud and clear on this issue. They have said that without protection against unfunded Federal mandates, they have little incentive to ratify such an amendment. They fear, perhaps not unreasonably, that we might balance our budget on their backs--by shifting our costs to them through unfunded mandates. They would prefer that the protection against this be a part of the balanced budget amendment itself. They would certainly, at a minimum, want the statutory protections of this bill in place--and for a period longer than a few years. Every statute is of course repealable. But this one, especially, ought not have that fact built into it. To do so would undercut the very purpose of this legislation--to assure State, local, and tribal governments that they have gained respect at the Federal level. Therefore, I strongly urge rejection of this amendment.

Mr. ROTH

Mr. ROTH. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ROTH. Madam President, I ask unanimous consent to temporarily lay this amendment aside.

Mr. ROTH. Madam President, I send an amendment to the desk and ask for its immediate consideration.

Mr. ROTH. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. ROTH

Mr. ROTH. Mr. President, I rise in support of the amendment of the Senator from Maryland to clarify that this legislation is not intended to address the role of our banking regulatory agencies. I do so because the major purpose of S. 1 is to focus on Federal unfunded intergovernmental mandates and to establish a process for treating them. In contrast, the banking regulators regulate banks, not governments. They impose no direct costs--a defined term under S. 1--on State, local, or tribal governments. The problem the banking regulators have brought to our attention arises from the somewhat indefinite scope of title II of S. 1. Originally intended to focus only on agency regulations involving the public sector, the title has been extended in certain respects to the private sector as well. The result might very well leave banking regulators in a situation where they are required to perform analyses producing little benefit to either the public or the private sector. In fact, the provisions of title II may need to be revisited in the near future as a general matter to make sure that its provisions are cost effective. The banking regulators have requested exemptions from the legislation arguing that the Treasury regulators should be accorded the same status as independent regulators that are exempt. In my analysis I never need reach the question of equal treatment since it appears to me that there is little, if any, overlap between the scope of this legislation and the domain of any of the banking regulators. It is my intention, as chairman of the Committee on Governmental Affairs, to move regulatory reform legislation later in this Congress. It may be that such legislation, even though general in its scope, would more directly address the responsibilities of banking regulators to the American people and the institutions they regulate. It seems to me entirely appropriate to wait until such legislation is fashioned and understood in order to resolve questions how regulatory reform might impact banking regulators.

Mr. ROTH

Mr. ROTH. Madam President, I strongly oppose this amendment. Its effect would be to exempt from the requirements of this act those Federal mandates involving State and local government activities, when the private sector is also engaged in the same activities. Now, this exclusion would seem to appeal to notions of fairness but in fact would effectively gut the bill. In truth, there is very little that State and local governments do that no one in the private sector is also engaged in doing. This is especially true since proponents of the amendment include those instances where one city franchises a private contractor to render a service for which another city might directly use its own employees. Trash collection and disposal is one example sometimes cited. Waste disposal companies are said to compete with the public sector in that they try to convince governments to contract out such service and therefore have to show that they can do it cheaper than government. It has been argued that Federal subsidies to State and local governments would in that type of instance upset some competitive balance. But other than enacting laws, everything a city or a State does could be covered by such competitiveness principles, particularly as more and more governments are moving to contract out a broader range of functions and services. Let me give a few examples. Police departments. Police departments compete with private security guards and private residential patrols.

Mr. ROTH. I would like to complete my statement. As I was saying, fire departments compete with private, for-profit fire departments such as used by Scottsdale, AZ; public building inspectors compete with privately contracted building inspection services such as used by Sunnyvale, CA, during building booms; public road construction crews compete with private construction contractors, and even with private toll roads such as is being built in northern Virginia; public schools and community colleges compete with proprietary trade schools; public hospitals compete with private hospitals; city attorneys compete with private, fee-for-service attorneys such as are used by many towns too small to have a full-time lawyer on staff; public libraries compete with bookstores and video rental stores. Many libraries now lend movie videos. Public swimming pools and golf courses compete with private facilities and country clubs; municipal revenue collection departments compete with private collection agencies such as those that will collect on overdue parking tickets for a percentage of the revenue; city computer operators and IRM departments compete with private-sector computer service companies, such as EDS, which will contract to do a city's payroll; and municipal buildings and ground maintenance crews compete with private-sector maintenance companies. In other words, Madam President, it is not just a few selected areas where government and the private sector render the same or similar services. Much more than just pollution control and waste disposal is involved. This amendment would cover virtually every activity of State and local government. This is why the distinction between public-sector and private-sector activities ought to be decided on a case-by-case basis. In fact, the legislation does acknowledge that there may be occasions when such issues of competitiveness are of legitimate concern. The bill states that committee reports shall explain how the matter has been addressed by the committee. Then Congress can judge how best to deal with that individual instance where a real problem might exist. Through the use of the waiver provision of S. 1, we can decide that funding a particular mandate for the public sector is unfair to the private sector. Madam President, I think this is a far, far better way to deal with this issue, and that is why I strongly urge my colleagues to reject this amendment. As I stated, its adoption would effectively gut the bill. The exception would swallow the whole. Madam President, I yield back the remainder of my time. I yield the floor. Mr. GLENN addressed the Chair.

Mr. ROTH. I will be happy to yield without losing my right to the floor.

Mr. ROTH. Madam President, as I was saying----

Mr. ROTH. I will be very happy to yield.

Mr. ROTH

Mr. ROTH. Mr. President, I am pleased to join today with the distinguished gentleman from Georgia [Senator Nunn] in introducing the Paperwork Reduction Act of 1995. Last year, this legislation, after thorough consideration by the Committee on Governmental Affairs, was reported unanimously and then passed the Senate on two different occasions, also unanimously. This legislation is part of the Contract With America. While the contract contains the original version which Senator Nunn and I introduced in the last Congress, we believe that the new House leadership would be receptive to the improved version we are today introducing. I am hopeful that the Senate will take the lead once again in passing this legislation. As chairman of the Committee on Governmental Affairs, I intend to process this legislation quickly, and ask my colleagues on the committee to join with Senator Nunn, Senator Glenn, and myself in this effort. I would hope that this legislation could be acted on this month to become the third Governmental Affairs bill in this young session to be considered on the floor. This legislation enjoys widespread support among the business community, both big and small, as well as among State, local, and tribal governments and the people--all who bear the burden of Federal Government paperwork collections. This legislation strengthens the paperwork reduction [[Page S1219]] aspects of the 1980 act and directs OIRA to reduce paperwork burdens on the public by 5 percent annually. By overturning the 1990 Supreme Court decision in Dole versus United Steel Workers of America, it extends the jurisdiction of the act by 50 percent. One could thus expect the burden-saving results of this legislation to be substantial. The Committee on Governmental Affairs has broad jurisdiction over subjects of paperwork burdens, information technology, and regulations. No one piece of legislation can adequately deal with all facets of those subjects. This legislation is not the last that will be addressed on those subjects by the committee. On February 1, 1995, the committee will hold a hearing on the Government's use of information technology as part of the Committee's Reinventing Government effort. On February 8, 1995, the committee will begin a set of hearings on the broad subject of regulatory reform.

Mr. ROTH

Mr. ROTH. Mr. President, I am pleased to join today with the distinguished gentleman from Georgia [Senator Nunn] in introducing the Paperwork Reduction Act of 1995. Last year, this legislation, after thorough consideration by the Committee on Governmental Affairs, was reported unanimously and then passed the Senate on two different occasions, also unanimously. This legislation is part of the Contract With America. While the contract contains the original version which Senator Nunn and I introduced in the last Congress, we believe that the new House leadership would be receptive to the improved version we are today introducing. I am hopeful that the Senate will take the lead once again in passing this legislation. As chairman of the Committee on Governmental Affairs, I intend to process this legislation quickly, and ask my colleagues on the committee to join with Senator Nunn, Senator Glenn, and myself in this effort. I would hope that this legislation could be acted on this month to become the third Governmental Affairs bill in this young session to be considered on the floor. This legislation enjoys widespread support among the business community, both big and small, as well as among State, local, and tribal governments and the people--all who bear the burden of Federal Government paperwork collections. This legislation strengthens the paperwork reduction [[Page S1219]] aspects of the 1980 act and directs OIRA to reduce paperwork burdens on the public by 5 percent annually. By overturning the 1990 Supreme Court decision in Dole versus United Steel Workers of America, it extends the jurisdiction of the act by 50 percent. One could thus expect the burden-saving results of this legislation to be substantial. The Committee on Governmental Affairs has broad jurisdiction over subjects of paperwork burdens, information technology, and regulations. No one piece of legislation can adequately deal with all facets of those subjects. This legislation is not the last that will be addressed on those subjects by the committee. On February 1, 1995, the committee will hold a hearing on the Government's use of information technology as part of the Committee's Reinventing Government effort. On February 8, 1995, the committee will begin a set of hearings on the broad subject of regulatory reform.

Mr. ROTH

Mr. ROTH. But, as I was saying, the important thing is for us to move ahead. The public, I might say every level of State and local government, have supported this legislation and have asked that we enact this legislation as quickly as possible, without major change. This is true of the Governors' Association, the legislatures, the mayors, the county commissioners. Mr. President, I urge we act on this legislation and for that reason I hope cloture is voted in the immediate future.

Mr. ROTH. Mr. President, as chairman of the Governmental Affairs Committee I want to urge my colleagues to support the cloture motion. I cannot emphasize too much how critically important this legislation is. What the American people want is action and not merely talk. Let me point out, as far as this piece of legislation was concerned last year, 993 was not held up by the then-minority side. It was a fact that amendments were offered from the majority side, amendments that were not relevant to the legislation before us that prevented consideration of this bill. In fact, the then-minority sought unanimous consent that this legislation be considered without amendment, but that proved impossible because of the action on the other side.

Mr. ROTH

Mr. ROTH. I thank the Chair. (The remarks of Mr. Roth pertaining to the introduction of S. 244 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') Mr. GRASSLEY addressed the Chair. [[Page S1131]]

Mr. ROTH. Mr. President, I would like to take just a moment to express my deep concern and condolences to Japan and the Japanese people over the tragic loss of life and property from Tuesday's devastating earthquake. The death toll is estimated to exceed 3,100 with another 15,000 suffering injury, and over 600 people still unaccounted for. The earthquake has left over 200,000 Japanese people homeless. I know my colleagues in the Senate and the House, as well as the American people, share a profound sense of sympathy for those who have lost loved ones or have been devastated by this disaster. There is unanimous support for the steps the United States has taken to assist the people of the Kobe area, and our thoughts and prayers are with our friends across the Pacific who have acted so bravely in the face of this tragedy. Mr. President, I have a second statement which I shall read.

Mr. ROTH

Mr. ROTH. If I may finish. What we are saying is that in the case of a mandate on the public sector, it is the general rule that either funds be made available to finance it, or a waiver be obtained. So there is a very real difference in the policy between the two situations. But I do not think anything is being said that the Congressional Budget Office cannot come back and say: We cannot make an estimate. But if they come back and say they cannot make an estimate, and it is a mandate on the public sector, then I, as author of that legislation or that amendment, either have to clarify the amendment so an estimate can be made, or I have to make sure that funds are provided. Or the third option is, of course, to get a waiver. So it seems to me we are hanging up on whether or not the CBO, in the one case, can say it cannot make an estimate. If it cannot make an estimate, then we have those three options. Otherwise, we cannot move ahead. In the case of the private sector, we can still move ahead because the legislation does not require funding.

Mr. ROTH. If the Senator will yield.

Mr. ROTH. Madam President, I say to my distinguished friend and colleague, if he will yield without his losing the floor, it does seem in a very real way to me that you are comparing apples and oranges. The reason I say that is that in the case of a mandate being imposed on the public sector, then it is the rule or the general requirement of this legislation that funds be provided to finance it. On the other hand, in the case of the private sector, while they are asking that an estimate be made, if there is no estimate, there is no requirement that funds be provided. So there is a very real difference between the public sector and the private sector. I do not think there is anything being said that says the Congressional----

Mr. ROTH. So we are trying to require the authors of the legislation to go back and spell out the legislation in such a manner that an estimate indeed can be made.

Mr. ROTH

Mr. ROTH. The Budget Committee's amendment strikes the roles of both the Budget Committee and the Governmental Affairs Committee in making determinations regarding the point of order in this bill. The bill would, with the amendment, become silent on how these determinations should be made. I wonder if the distinguished chairman of the Budget Committee would respond as to how the determinations of levels of mandates would be made under this legislation?