Mel Watt

Mr. WATT of North Carolina

Mr. WATT of North Carolina. Mr. Chairman, I move to strike the last word. Mr. Chairman, I yield to the gentleman from Oregon [Mr. Wyden].

Mr. WATT of North Carolina. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I rise in support of the Porter amendment, and in an effort to keep the U.S. Government from going bankrupt or pursuing any of the other alternatives that might result if this bill is passed. I have heard the argument here that this is not an entitlement program. I would submit to my colleagues that it is either an entitlement program or it is a fraud on the American people. I have thought this thing through, and it seems to me that ther are four options that we have under this bill. The first option is if we apply it like it is written and we continue to apply the laws as they are written, and the regulations, we can bankrupt the Government, because everybody who has any decrease in value in their property will be making claims under this bill. The second option is we can bankrupt an agency of Government which chooses to promulgate rules that are pursuant to statutes that this Congress has passed. We can have judgments entered against the agency and the agency can choose to continue to promulgate rules as we have directed them to do under our statutes, and if we do not appropriate some more money to fund these agencies or departments of Government, then ultimately that particular department of the Government will become bankrupt as opposed to the whole Federal Government becoming bankrupt. The third option that we have under this bill is that we can work a tremendous fraud on the claimants who are coming into court by saying to them under this bill that we give you a cause of action but if you get a judgment against the Government or against the agency, that judgment is not going to be worth the paper it is written on because the Federal Government is going to refuse to pay the judgment. The fourth option is that we can say to our Federal Government agencies that you will not promulgate any regulations in furtherance of the laws that this Congress has adopted because if you do, then you are going to have lawsuits against you. With all respect to the gentleman from Texas [Mr. Stenholm], at least he was honest enough to come to this floor and say that is exactly what he expects to happen, we are not going to have any more regulations promulgated, and that is the objective we are trying to achieve. At least that is honest with the American people. What does the last option here do for respect for the laws of this country? It means we have got laws on the books that our departments cannot promulgate any regulations to enforce. Therefore, people's respect for the law goes down, and we already have a crisis in this country, we are told, about people's respect for the law. So we have got this vicious cycle going around. The final point I want to make is you will recall several weeks ago I came into this body and I offered the exact language of the fourth amendment to the U.S. Constitution. My colleagues here by an overwhelming majority voted against the precise language of the fourth amendment. I did not bother to come back into this body today and bring the language of the fifth amendment. I guess my colleagues who have all stood up here and said this bill is in furtherance of the fifth amendment, if I had brought the exact language of the fifth amendment into this body and said, ``Please vote the fifth amendment have done. We are back here today saying we are furthering the Constitution when we are doing exactly the opposite thing.

Mr. WATT of North Carolina. I have heard the gentleman say two or three times that this is subject to appropriation. I am trying to figure out what that means, because if somebody goes into court and gets a judgment against an agency of the United States of America, and that judgment is in effect in the courts of this country against the United States, how can we not appropriate the money and get out of that unless this is simply a false promise to property owners. I do not understand how we could as a nation with integrity say that somebody can get a judgment under a law, your law in this case, this law that we are debating today, and then turn around and say no, we are not creating any obligation to pay that judgment.

Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?

Mr. WATT of North Carolina. I thank the gentleman for yielding, Mr. Chairman. Mr. Chairman, I simply want to inquire whether the gentleman was supporting the amendment of the gentleman from Louisiana [Mr. Tauzin] or whether he was not supporting it. I could not tell from his statement.

Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?

Mr. WATT of North Carolina. Mr. Chairman, I do not know of any agency in the Federal Government that is over there writing regulations, unless they are writing those regulations pursuant to statutes that we passed in this body. And if we do not like the regulations that they write pursuant to our statutes, then we ought to change the statutes. We ought to have the guts to stand up and say ``We do not like the Clean Water Act, we do not like the Endangered Species Act, and we are going to do away with them,'' rather than coming and telling the American people that somebody else over there on the other side of town has done something that we do not like, even though they are acting pursuant to the authority that we gave them. This is the ultimate opportunity, political opportunity, to pass the buck and beat up on some Federal agency that is doing exactly what we authorized them to do, and we ought to reject the principle that it stands for, or vote it down. Do not pass the buck. Have the heart to do what you want to do up front with the American people.

Mr. WATT of North Carolina. I yield to the gentleman from Oregon.

Mr. WATT of North Carolina. I yield to the gentleman from Texas.

Mr. WATT of North Carolina. I continue to yield to the gentleman from Oregon [Mr. Wyden].

Mr. WATT of North Carolina. I yield to the gentleman from Oregon.

Mr. WATT of North Carolina. Yes, I would.

Mr. WATT of North Carolina. I yield to the gentleman from Massachusetts.

Mr. WATT of North Carolina

Mr. WATT of North Carolina. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I will not take the 5 minutes, but I do want to say that while I do not agree with the 5-percent figure in the gentleman's amendment, it does raise a significant issue. The gentleman thinks the figure ought to be 5 percent. I would probably think it ought to be 25 percent, and I think that really points up the issue that the gentleman is making here and bringing to us. The problem is there is no definition of what that means in this bill, and the very sponsors of the bill who are saying we are trying to cut down on the authority of regulators and agencies to promulgate regulations come right around the corner and now say we are going to leave the definition of what is major up to the very regulators which we distrust. So here we are again delegating responsibility, abdicating, I might say, responsibility that we ought to take as a body to define what we mean in a law to agencies, and then next month, next year, we will be right back here second-guessing the way they have exercised that authority that we have delegated to them. And this is a vicious circle we are engaged in.

Mr. WATT of North Carolina. That is right.

Mr. WATT of North Carolina. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, when amendments of this kind are rejected by the other side, it forces me to raise the question again: What is the purpose that we are trying to achieve here? Is the purpose to make our Government and the regulations and rules that we adopt more reasonable, or is the purpose to do away with rulemaking and regulations? I hate to keep questioning the purpose of this bill. I had thought that the underlying purpose of the bill was to try to encourage Federal Government agencies to approach rulemaking and regulation-making in a reasonable way, to try to reduce the burden that these agencies are imposing on the American people, but not to do away with the value and the purposes that sound rulemaking accomplishes in the public interest. So when I see a simple cost-benefit approach, which is what this amendment contemplates, being rejected by my colleagues out of hand, then I start to question what are we trying to do here? If we are trying to do away with every rule and regulation that the Federal Government has that my colleagues in this body do not like because many of them serve a public interest, a public purpose that they do not support even though they are in the interest of our Nation, then at least my colleagues ought to be honest enough to stand up and say that to the American people. Do not try to do with subterfuge what you cannot and will not be honest with the public on and do directly. If you want to do away with regulations or some law that you do not like, bring it into the body here and let us debate the merits or lack of merits of that particular law. Do not come in through the back door and try to undercut the law by undercutting rules and regulations that are promulgated pursuant to that law. I submit that it is just gutless for us to come into this body and say to the American people that we have got a regulatory process that is out of control and we will not bring that regulatory process back into control by cutting back on the laws themselves that are generating the regulations. I do not know of any Federal Government agency--I want to repeat it again--that is out there just making up some rules and regulations and promulgating them pursuant to something other than a congressionally approved law. If we did our job and specified in some reasonable way what the law says instead of delegating our responsibility to the government agencies, then they would not have to guess and write a bunch of regulations that we should have written into the law. And if they step beyond the ambit of a law that we have passed in promulgating regulations, then we ought to have the guts to snatch them back within the law, but not undercut what revoking the law. This makes no sense, and I encourage my colleagues to support this amendment.

Mr. WATT of North Carolina. Mr. Chairman, I offer an amendment.

Mr. WATT of North Carolina. Mr. Chairman, this amendment has a very simple purpose. It is designed to ensure that we do not inadvertently create a right of judicial review for issues and entities other than those set out with great particularity in title I. The right to judicial review in title I is intended to protect the right of small entities to have their interests considered during the development of a rule. If an agency improperly certifies that a rule would not have a significant economic impact on a substantial number of small entities or fails to prepare a final regulatory flexibility analysis that is required under section 604 of title 5, an effected small entity would have the right to seek judicial relief within the framework established by title I. I know that the committee did not intend to create a right of relief that goes beyond the text of the bill, but I fear that may be the unintended consequence if we pass this legislation, as drafted. This problem is the result of the drafters' decision to replace current section 611(a) of title 5, which states that a determination by an agency concerning the applicability of any of the provisions of this chapter to any action of the agency shall not be subject to judicial review, except as otherwise provided later in the section. If we retain that provision and style the remainder of the text of title I as an exception to the rule against judicial review, we will make absolutely clear that the right to judicial review and the remedies described in title I are the limits of what Congress intends to provide in the way of judicial review. This is not an academic point. Under the Regulatory Flexibility Act, an agency's duties are not limited to those activities for which a right of judicial review is explicitly described in title I. For example, section 602(a) of title 5, which is part of the act, requires each agency to publish a ``regulatory flexibility agenda'' during the months of October and April of each year. [The semi-annual Reg/Flex ``Agenda'' is to contain a brief description of the subject of any rule under consideration which is likely to require a regulatory flexibility analysis; the objectives and legal basis for the rule; and an approximate schedule for completing action on any rule for which the agency has issued a general notice of rulemaking. However, an agency is neither required, nor precluded from considering or acting on any matter either listed or not listed on the Agency's agenda.] Also part of the Regulatory Flexibility Act of 1980 is section 610 of title 5, United States Code, which requires the agencies to conduct periodic reviews of its rules. While I am quite sure that the committee did not intend to provide judicial review of agency decisions under these sections, the way the legislation is drafted, a court would have no way of knowing that was the case. Indeed, because this legislation drops the general restriction on judicial review, we could wind up with the courts declaring that the right of judicial review of matters not specifically dealt with in title I is even more expansive than the approach established by title I. There is absolutely no reason for the House to pass this legislation without having resolved this ambiguity. My amendment would retain the current text of section 661(a) and make the judicial review provisions of title I an exception to the general rule against judicial review. I have no anticipation that anybody is going to worry about this, and we are going to go ahead and pass this bill like it is. I have no intention of requesting a recorded vote. If you want to leave this like it is, leave it ambiguous, then vote against the amendment.

Mr. WATT of North Carolina. Mr. Chairman, I offer an amendment.

Mr. WATT of North Carolina. If the gentlewoman will yield, I do not know how one lawsuit in the District of Columbia is going to swamp the District of Columbia District Court, because once one lawsuit is filed in the District of Columbia, this determination can be made in that lawsuit for the whole Nation. We are not going to need all of these different groups coming in here to make that determination. Let me just say I have no intention of requesting a recorded vote on this. I hope the American business people and the American people are listening, because what you are doing makes absolutely no sense. On a procedural issue, we are going to tax and use the resources of business people all across America simply because my colleagues here will not even read their own bill and understand what their own bill provides for, and what this simple, straightforward amendment would do in terms of cost savings. Now we talk about how the American people are disgusted with what we are doing here. If the American people are looking at this, they ought to be disgusted, and in the bill we come out with, the American people are going to get exactly what they deserve. I have no intention of asking for a recorded vote on this. You all can vote it down, if you do not want your bill to improve; let us leave it disgusting and costly to the American taxpayers, and to small businesses, and you go out there and tell them why you wrote such a shoddy piece of legislation.

Mr. WATT of North Carolina. If the gentlewoman would yield, why would we want to put small businesses to that expense when one small business could litigate the issue of whether this kind of certification has been made or whether final regulatory flexibility analysis has been issued by the agency, why would we want to put 2,000 small businesses to that expense of trying to consolidate cases, and pull this together when one determination by a court would be adequate?

Mr. WATT of North Carolina. I appreciate the gentlewoman yielding. Let me just respond to the implication that this is somehow designed to disadvantage small businesses. I cannot think of anything that would disadvantage small businesses more than for 1,000 individual small businesses to be around the United States litigating the same procedural issue that could be decided in one location in 1 day. I mean, either the agency has done what it is supposed to do under this bill, which is certify it, make the certification, or prepared the regulatory flexibility statement, or it has not. We do not need 1,000 different small businesses using their resources in different courts throughout the United States to make that kind of determination. The suggestion that I am trying to disadvantage small businesses just does understand the impact of my amendment or he does not understand the impact of his own bill. The bill has nothing to do with the underlying regulation itself. It has to do with whether an agency has certified two things, and that is what the litigation would be about. I want to make sure that the gentleman understands and that we put this in perspective. What would the gentleman suggest that we do, that an agency do if one court in California said, ``You have not done what you are supposed to do under this statute'' and another court in New York says, ``You have done what you're supposed to do under the statute''? Then what would the agency do under those circumstances?

Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?

Mr. WATT of North Carolina. That is correct.

Mr. WATT of North Carolina. I certainly hope so.