Issue #16 * May 26, 1995 * David A. Ridenour, Editor

Hill Watch - Regulatory relief initiatives on Capitol Hill

McIntosh Substitute Attempts to Streamline "Sunset" Bill's Review Process:

On May 18, the National Economic Growth, Natural Resources and Regulatory Affairs Subcommittee of the House Government Reform and Oversight Committee approved a substitute to the Regulatory Sunset and Review Act (H.R. 994) offered by Subcommittee Chairman David McIntosh. H.R. 994 was introduced by Representatives Jim Chapman (D-TX) and John Mica (R-FL). The principal changes to the bill are as follows: 1) Only significant rules -- those with $50 million impact or greater -- will automatically be subjected to the measure's sunset and review procedures. However, the substitute provides a petition process that would allow the public and congressional committees to request that non-significant regulations be reviewed under the same procedures. Automatic sunset and review was limited to significant regulations in response to concerns that subjecting all regulations to these procedures could bog down the process and become too bureaucratic. 2) Federal agencies would be required to solicit public comment on the costs, implementation and inconsistencies of rules. Agencies would be required to demonstrate that existing rules could meet cost/benefit analysis and risk assessment standards applicable to new rules. 3) Initial "sunsets and reviews" would be staggered over a seven-year period to ensure variation in regulation termination dates. This would enable the agencies to conduct more thorough, less haphazard, reviews during the initial review process. 4) The substitute directs the Administrator of the Office of Information and Regulatory Affairs (OIRA) to issue review guidelines and coordinate sunset review processes through agency regulatory review officers. It also gives the Administrator authority to group related or conflicting rules for simultaneous review by issuing agencies; responsibility for informing the public on rules subject to sunset review; and some authority to settle conflicting recommendations from agencies. Project Relief has endorsed the Regulatory Sunset and Review Act.

Regulatory Reform Act Substitute to be Offered By Senate Republican Leadership:

As the Relief Report goes to press, the Senate Republican leadership is crafting a substitute to the Comprehensive Regulatory Reform Act of 1995 (S. 343). The Senate Government Affairs, Energy and Natural Resources and Judiciary committees had reported three different versions of the bill. The strongest of the three versions is the Judiciary Committee version which in some ways is even tougher than the risk assessment bill approved by the House in March. The Judiciary Committee bill, unlike the House bill and other Senate Committee bills, would eliminate the Delaney Clause, a controversial provision of the Food, Drug and Cosmetic Act of 1958. The Delaney Clause requires zero cancer risk for additives used in processed foods. Work on the substitute -- which Republican leaders hope will enjoy bi-partisan support -- is said to be in its final stage.

Administration Watch - News from the Administration

President Clinton Threatens Veto of Emergency Budget/Salvage Bill:

On May 17, President Clinton threatened to veto the Omnibus Recision bill that includes the Emergency Salvage Amendment that would permit the sale of dead and dying timber in national forests. Although the bill passed in the Senate 99-0, the margin was much closer in the House.

Action Items - How you can promote the regulatory relief agenda

Groups Urged to Set Up Appointments With Senators During Recess: Project Relief Chairman Bruce Gates is calling on all regulatory relief groups to arrange visits with their Senators during the Memorial Day recess to urge support for S. 343, the Comprehensive Regulatory Reform Act. Particular attention should be devoted to Senators J. Bennett Johnston (D-LA), William Roth (R-DE), William Cohen (R-ME), Sam Nunn (D-GA) and John Breaux (D-LA). State office telephone numbers are as follows: Johnston, (504)389-0395; Roth, (302)573-6291; Cohen, (207)780-3575; Nunn, (404)331-4811 and Breaux, (504)589-2531.

Grassroots Groups Urge Calls to White House in Support of Salvage Amendment:

The Montana Resource Providers Coalition and the Intermountain Forest Industry Association are urging calls and faxes to the White House in support of the Emergency Salvage Amendment in an effort to stave off a possible veto of the Omnibus Recision bill, which includes the salvage amendment. White House numbers are as follows: Comment line, (202)456-1111; Main Line, (202)456-1414; and Fax Line, (202)456-2461.

Victims' Corner - Stories of personal tragedy or government folly

EEOC Needs to Lighten Up, Says Lamp Producer:

Mike Welbel, owner of the Daniel Lamp Company on Chicago's Southwest side, learned the hard way that hiring minority employees -- even if you only hire minorities -- doesn't necessarily insulate you against charges of discrimination. Two investigators from the Equal Employment Opportunity Commission showed up on Welbel's doorstep one day and accused him of rejecting a female job applicant solely on the basis that she was Black. To say the least, Welbel was surprised. Of his 26 employees, 21 were Hispanic and 5 Black. The only reason he employed so many Hispanics was because his business was located in a predominantly Hispanic area. But the inspectors insisted that, based on the local population, he should have employed more Blacks -- 8.45 to be precise. And just what did the EEOC want Welbel to do to rectify this injustice? The agency wanted him to spend $10,000 in newspaper ads to locate all the Black job applicants he had not hired and pay them $123,991 each. Eventually, the EEOC settled for a one-time payment of $25,000. Source: "Red Tape in America" (The Heritage Foundation, 1995).

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Issue #17 * June 8, 1995 * David A. Ridenour, Editor

Hill Watch - Regulatory relief initiatives on Capitol Hill

Regulatory Reform Act Substitute Slated for Senate Floor June 19:

Senate Republicans have been hard at work crafting a substitute to the Comprehensive Regulatory Reform Act of 1995 (S. 343). According to Senate sources, Republican leaders have been working to mold elements of three different regulatory reform/risk assessment and cost benefit analysis bills (those approved by the Senate Government Affairs, Energy and Natural Resources and Judiciary Committees) and to address some of the concerns of Senate Democrats in the hopes of constructing a bill that can enjoy bi-partisan support. However, the substitute will be "at least as good as S. 343," the bill approved by the Judiciary Committee and widely regarded as the strongest of the three measures, according to sources. It will not be sent to the floor, for example, without a provision for Judicial Review -- an absolute must for ensuring that agencies conduct adequate risk assessments and cost-benefit analyses before imposing regulations. A final draft of the substitute is imminent and it will go to the floor June 19.

Hearings Scheduled on OSHA's Fall Protection Standard:

The House Small Business Committee's subcommittee on Regulation and Paperwork, chaired by Representative James Talent (R-MO), will hold hearings on OSHA's new "Fall Protection Standard" on Thursday, June 15. Under the new standard -- which went into effect February 6 -- employers in the construction industry must provide a safety harness, safety nets or scaffolding with a walkway or guardrail for any employee working above six feet. The new rule by some industry estimates could drive up the costs of the standard well beyond $100 million annually. The hearing will be held at 10 A.M., Room 2359 Rayburn House Office Building and will feature such notables as OSHA chief Joseph Dear. The hearing record will be kept open. Those wishing to submit testimony are encouraged to do so. For more information, media may contact Mike McLaughlin, staff director of the Regulation and Paperwork Subcommittee at (202)225-7797.

Action Alert... Action Alert... Action Alert... Action Alert... Action Alert...

Mobilize Your Grassroots NOW, Project Relief Chairman Urges:

With Senate action on the Comprehensive Regulatory Reform Act of 1995 (S. 343) scheduled for June 19, Project Relief Chairman Bruce Gates has called on regulatory relief groups to unleash their grassroots in support of the measure. According to Hill sources, Senate offices have been receiving calls and letters from grassroots activists -- and these calls and letters are having an impact. But the grassroots effort must be intensified, supporters say, as there is a growing sense on the Hill that the fate of S. 343 will rest in the hands of the grassroots. INTENSIFY YOUR EFFORTS NOW, Project Relief has urged. Special attention should be paid to the following Senators: Olympia Snowe (R-ME), (202)224-5344; Howell Heflin (D-AL), (202)224-4124; Bob Graham (D-FL), (202)224-3041; Sam Nunn (D-GA), (202)224-3521; Tom Harkin (D-IA), (202)224-3254; J. Bennett Johnston (D-LA), (202)224-5824; John Breaux (D-LA), (202)224-4623; Max Baucus (D-MT), (202)224-2651; J. James Exon (D-NE), (202)224-4224; Harry Reid (D-NV), (202)224-3542; Richard Bryan (D-NV), (202)224-6244; Kent Conrad (D-ND), (202)224-2043; Byron Dorgan (D-ND), (202)224-2551; William Cohen (R-ME), (202)224-2523; and Jim Jeffords (R-VT), (202)224-5141.

Bulletin Board - News from regulatory relief groups

President Clinton Signals He Will Veto Clean Water Act Amendments:

President Clinton appears poised to veto the Clean Water Act Amendments of 1995 (H.R. 961), should they eventually find their way to his desk, branding them as an attempt to make the Clean Water Act the "Dirty Water Act." Among the Administration's and environmental groups' complaints is that the bill would "undermine 20 years of success in our clean water program." The fact is, however, that H.R. 961 would maintain the same water quality standards and protections of the original Act, but give flexibility to states and localities on how to meet these standards. Opponents also argue that the amendments "establish scientifically unsound methods of identifying wetlands." Wetlands weren't even mentioned in the original act and the current definition is vague and drawn from a composite of court rulings, multi-agency negotiations and executive branch decisions that are hardly scientific. For more information, media may contact Charlie Ingram of the Clean Water Industry Coalition at (202)463-5627 or Tricia Law of the Committee on Transportation and Infrastructure at (202)225-9446.

Victims' Corner - Stories of personal tradgedy and regulatory folly

Landowner Learns Valuable Lesson -- Don't Do Your Local Government Any Favors:

This story comes courtesy of the National Wetlands Coalition: In 1964, Mr. and Mrs. Gaston Roberge purchased 2.8 acres of land in Old Orchard, Maine, not far from the ocean, as a retirement investment. During the mid-1970s when the Old Orchard community decided to install an new sewer system, the Roberges agreed to allow local authorities to dump some of the excess fill from the project onto low-lying areas of their property. By the mid-1980s, the Roberge's property had appreciated in value considerably -- A developer offered them $440,000 for the land. The Roberges quickly agreed. But when the Army Corps of Engineers caught wind of the deal, they declared the land a wetland. The Corps also concluded that Roberge had illegally filled a wetland when he allowed local authorities to dump excess fill dirt on the land and ordered them to clean it up. For doing their civic duty, the Roberges would have to pay between $50,000 and $100,000. Naturally, the new wetlands designation also scuttled the land sale. For more information, media may contact the National Wetlands Coalition at (202)338-1800.

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Issue #18 * June 23, 1995 * David A. Ridenour, Editor

Hill Watch - Regulatory relief initiatives on Capitol Hill

Senate Floor Action on Regulatory Reform Package Not Expected Before June 27:

The substitute to the Comprehensive Regulatory Reform Act of 1995 (S. 343) could reach the Senate floor this week but could be put off until after the July 4 recess. Senate action on the measure, which was to begin June 19, was delayed so that Senate Republicans could make changes needed to gain the support of Democrat lawmakers, including Senator J. Bennett Johnston (D-LA). Senator Johnston is now on board, greatly improving the reform package's chances for approval. In exchange for this support, provisions pertaining to regulatory "lookback," the "supermandate," "decisional criteria," and judicial review are being modified:

"Lookback" Provision:

The "Lookback," a provision which would extend to existing regulations the same cost-benefit analysis/risk assessment standards applicable to new regulations, is being changed to give federal agencies the authority to determine the order in which existing regulations would be re-examined. However, also under the draft proposal, the public would be permitted to provide input on review priorities through a petition process.

"Supermandate":

The "Supermandate," a provision that would permit S. 343 to supersede the provisions of existing laws, has been dropped from the draft proposal.

"Decisional Criteria":

"Decisional Criteria," the criteria under which cost-benefit analysis principles would be applied to federal regulations, is being altered. The latest "decisional criteria" stipulates that 1) agencies must demonstrate that the benefits of a regulation outweigh the costs and 2) agencies must demonstrate that the proposed rule is the least costly option that can achieve the rule's objectives. But the agencies would also be permitted to cite uncertain health, environmental or safety benefits as justification for "more costly alternative[s]."

Judicial Review:

Judicial Review, which would help ensure that agencies conduct adequate risk assessments and cost-benefit analyses, is being changed. Citizens could seek judicial review only for final agency actions in the petition and review process.

Although Senator Dole was hopeful that the Comprehensive Regulatory Reform Act (S. 343) would be approved before the July 4 recess, that now appears unlikely. The recess is scheduled for June 30, giving lawmakers less than a week to consider the legislation. The bill will most likely face a Democrat-led filibuster and the Clinton Administration has already reportedly threatened to veto the measure. Supporters of the bill hope to secure cloture before the recess. During the recess, swing Senators are likely to face intense grassroots lobbying campaigns at home -- from both sides of the issue.

Property Rights Hearings Scheduled:

The Senate Environment and Public Works Committee, chaired by Senator John Chafee (R-RI) has scheduled three hearings on private property rights. The first, to be held on June 27, will include witnesses from the Clinton Administration, property rights organizations and environmental groups. The second, anticipated on July 12, will focus on property rights legislative initiatives. The third, tentatively scheduled for July 18, will address non-compensatory private property protection initiatives. The Senate Judiciary Committee, which has jurisdiction over S. 605, the comprehensive property rights bill, also plans to have hearings on property rights. The first will be held in Utah in early July.

Action Alert... Action Alert... Action Alert... Action Alert... Action Alert...

Continue Grassroots Mobilization, Regulatory Relief Advocates Urge:

Regulatory relief advocates are urging continued pressure from the grassroots in support of a strong S. 343, the Comprehensive Regulatory Reform Act of 1995. This pressure, they say, will be important not only next week when Senators will seek cloture, but during the recess. Intensive lobbying campaigns targeting swing Senators will most likely be launched by opponents of regulatory relief during the recess. Senators Baucus, Kerrey (NE), Reid, Bumpers, Nunn, Ford, Breaux, Conrad, Specter, Hollings, and Robb are said to be likely targets.

Victims' Corner - Stories of personal tragedy or government folly

Landowner Learns Valuable Lesson -- Part II:

The last edition of the Relief Report (June 8) reported the experiences of Gaston and Monique Roberge, an Old Orchard, Maine couple who had a $440,000 land sale scuttled in 1986 when the Army Corps of Engineers ordered them to remove some 3,100 yards of fill from "wetlands" on their property at a cost of between $50,000 and $100,000. As Paul Harvey would say, "And now, the rest of the story": The Roberges decided to sell their land in part due to the deteriorating health of then-73-year-old Gaston, who had already suffered two heart attacks and was going blind in one eye. Hoping to salvage some of their investment, the Roberges filed for an after-the-fact permit for the minor fill in 1988. But the permit was denied. It seems the Army Corps of Engineers never intended to consider an after-the-fact permit from the Roberges. In a July 27, 1987 memo, one Corps official wrote: "Roberge would be a good one to squash and set an example --Old Orchard is heating up these days." But this Army Corps of Engineer cloud does have a silver lining: In 1992, the Corps finally admitted that the Roberges' land was a Phase III wetland that was filled prior to the Corps' jurisdiction of this type of wetland. In other words, the Roberges need not remove the fill before placing the land on the market. Unfortunately, in the intervening six years, the bottom had dropped out of the property market so the Roberges decided to file a "temporary regulatory takings" lawsuit. On December 9, 1994, the federal government agreed to pay the Roberges $338,000 -- the first settlement ever for a "temporary regulatory wetlands' taking." The Roberges credit much of this victory to the Fairness to Land Owners Committee, saying in a New York Times interview, "We would have lost our property if we had not contacted the FLOC after reading about their efforts..." For more information on the Roberge case, media may contact Margaret Ann Reigle at (410)228-3822.

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