01 Feb 1997 Regulatory Relief Initiatives During the 104th Congress
To follow is a chronological history of regulatory reform efforts of the 104th Congress as documented in the Hill Watch section of The Relief Report. This summary is an incorporation of over forty editions of The Relief Report, a periodic update on regulatory relief initiatives published by The National Center for Public Policy Research.
This summary tracks proposed regulatory relief legislation in the 104th Congress. Among some of the more significant legislation covered in this summary is the Regulatory Transition Act (H.R. 450), the Private Property Protection Act of 1995 (H.R. 925), the reauthorization of The Clean Water Act (H.R. 961), proposed reforms of the Endangered Species Act, the Enumerate Powers Act (H.R. 2270), which would require that Congress cite the constitutional authority for every bill it approves, and many others. In addition to tracking regulatory legislation, The Relief Report summary covers the new “corrections” days, which were days that were set aside for The House of Representatives to consider only legislation that sought to repeal outdated, useless or just plain “dumb” regulations.
In short, this summary of Hill Watch provides a fair and concise assessment of the accomplishments and failures of the 104th Congress with regard to regulatory relief initiatives.
January 20, 1995
Congressmen Tom Delay and David McIntosh Introduce Regulatory Moratorium Bill. Congressman Tom Delay (R-TX) and David McIntosh (R-IN) introduced the Regulatory Transition Act of 1995, H.R. 450, on January 9 to impose a moratorium on federal agency regulations retroactive to November 9. The moratorium would extend through June 30, 1995 and would not apply to regulations that respond to imminent threats to health or safety or to those essential to criminal law enforcement or licensing. The intention of the moratorium legislation is to “stop the bad, let through the good.” H.R. 450 has over 70 co-sponsors — both Republican and Democrat — and hearings began in Congressman McIntosh’s Regulatory Affairs subcommittee of the Government Reform and Oversight Committee on January 19. Mark-up is scheduled for January 25. A companion bill, S. 219, was introduced in the Senate by Senator Don Nickles (R-OK). By press time it had some 30 co-sponsors.
January 27, 1995
Regulatory Moratorium Bill Continues to Gain Momentum. The Regulatory Transition Act of 1995, H.R. 450, introduced by Congressman Tom Delay (R-TX) and David McIntosh (R-IN) on January 9 to impose a moratorium on federal agency regulations retroactive to November 9 continues to gain momentum. By press time, the bill had some 90 co-sponsors. Mark-up in Congressman McIntosh’s Regulatory Affairs subcommittee of the Government Reform and Oversight Committee is currently scheduled for February 10, with full committee mark-up possible on February 14. The Senate version of the bill, S. 219, introduced by Senator Don Nickles (R-OK) on January 12, had 35 co-sponsors by press time.
Senator Nickles to Seek 45-Day Waiting Period for Background Check on New Agency Regulations. Senator Don Nickles (R-OK) will introduce the Regulatory Oversight Act of 1995 to ensure that regulations issued by federal agencies are consistent with congressional intent. Under the Regulatory Oversight Act, final rules would be subjected to a 45-day waiting period after publication to allow Congress the opportunity to review the rule and enact, if necessary, a joint resolution of disapproval.
February 10, 1995
Regulatory Moratorium Bill Continues to Build Momentum. Congressman Tom Delay’s and David McIntosh’s Regulatory Transition Act of 1995, H.R. 450, continues to build momentum. By press time, it had 112 co-sponsors. The Regulatory Transition Act would impose a moratorium beginning November 9, 1994 through June 30, 1995 on new rule makings by the federal government. It would exempt regulatory efforts to reduce regulatory burdens and agency activities “relating to military or foreign affairs functions or agency management… granting an application for a license, registration or similar authority.” Floor action on H.R. 450 and regulatory components of the Job Creation and Wage Enhancement Act, H.R. 9, are expected to begin February 22.
Property Rights Hearing Set for February 15. The House Agriculture Committee’s Subcommittee on Resource Conservation, Research and Forestry will hold hearings on property rights on Wednesday, February 15.
Hearings on OSHA to be Held February 16. The House Committee on Economic and Educational Opportunities Subcommittee on Oversight And Investigations will hold a hearing on “The Need for Regulatory Reform: The Case of OSHA/NIOSH” on Thursday, February 16.
February 17, 1995
Regulatory Moratorium Emerges From Mark-up With Few Changes. Congressmen Tom Delay’s and David McIntosh’s Regulatory Transition Act of 1995, H.R. 450, emerged from the House Government Reform and Oversight Committee with few changes. The duration of the moratorium was changed: If approved, it will be retroactive to November 20, 1994 through December 31 of this year. Originally, it was to be effective November 9, 1994 through June 30 of this year. Additional exemptions were also added to the Act in mark-up. Rulemakings relating to the IRS and banking were exempted. By press time, H.R.450 had 143 co-sponsors — both Democrat and Republican.
House Majority Leader Armey Warns Against Complacency as Floor Action on Regulatory Reform Initiatives Approaches. At a general membership meeting of Project Relief on February 14, House Majority Leader Dick Armey (R-TX) urged members to remain vigilant in their efforts to promote the Regulatory Transition Act and the regulatory elements of the Job Creation and Wage Enhancement Act, H.R. 9. After a string of legislative victories there’s been “a kind of a presumption of success,” said Armey. But complacency is the surest road to failure, he added. Congressman Armey also reviewed the legislative calendar for the coming week. Floor consideration of paperwork reduction is set to begin February 22 while consideration of the Regulatory Transition Act is slated to begin on the 23rd. Final provisions of H.R. 9 are expected by March 2.
Senate Picking Up Pace on Regulatory Reform. Mark-up on the Senate version of the Regulatory Transition Act (S. 219), introduced by Senator Don Nickles (R-OK), is tentatively scheduled for the Government Affairs Committee on February 23. Senate Committee reports on the comprehensive regulatory reform bill introduced by Senate Majority Leader Robert Dole (R-KS) last month are expected by April 7 and final approval of the bill is expected before Congress’s Easter recess.
March 1, 1995
Private Property Protection Act of 1995 Set for House Floor Vote Tomorrow. H.R. 925, the Private Property Protection Act of 1995, will be considered on the House floor tomorrow. H.R. 925, if enacted, would require the federal government to compensate landowners when regulations it imposes reduce the value of private property. Under a substitute offered by Congressman Charles Canady (R-FL) and amended by Congressman W.J. “Billy” Tauzin (D-LA), the federal government would be required to compensate landowners for “regulatory takings” that result in a loss of 10% or more in the total value of an owner’s property or 50% or more in the value of any portion of the property. As currently constituted, H.R. 925 would only apply to the Endangered Species Act, wetlands, the “sodbuster” provisions of the Farm Bill and various water rights laws although it is intended to discourage overzealous regulation across the board. The bill would not affect state and local laws or zoning ordinances and would not hinder government efforts to promote important public health, safety and environmental goals. The measure is designed to force Washington to establish regulatory priorities and limit regulations to those that are necessary and address legitimate national interests. If a regulation is truly in the public interest, the public will be willing to pay for it. If not, the regulation should not be imposed.
Regulatory Reform Agenda Steamrolls Through Capitol Hill. By press time, three important elements of the regulatory reform agenda had been approved by the House — by wide margins. The Regulatory Transition Act (H.R. 450), a measure that would establish a moratorium on federal rulemakings retroactive to November 20, 1994, was approved 276-146. The Risk Assessment and Cost Benefit Act (H.R. 1022), a bill that would force agencies to assess the value and costs of regulations before imposing them, was approved 286-141. Paperwork reduction (H.R. 830) was approved 418-0. The regulatory reform agenda record is 3-0 so far.
March 9, 1995
Regulatory Relief Package Passes House — By Wide Margin. The regulatory relief package included in the Job Creation and Wage Enhancement Act (H.R. 9) was approved in the House last Friday by a vote of 277-141. Votes on individual elements of the package were as follows: The Regulatory Transition Act, H.R. 450, 276-146; the Private Property Protection Act, H.R. 925, 277-148; the Risk Assessment and Cost Benefit Act, H.R. 1022, 286-141; Paperwork Reduction, 418-0 and the Regulatory Flexibility Act, H.R. 926, 415-15. At a Capitol Hill press conference following passage of the regulatory relief package, House majority Whip Tom Delay (R-TX) thanked Project Relief members for their support. “I want to thank members of Project Relief for all their hard work,” Congressman Delay said. “They’re the ones that did the grassroots work that made this victory possible.” The press conference kicked-off with a red-tape cutting ceremony: At Congressman Delay’s urging, Project Relief Chairman Bruce Gates used scissors to cut through a mass of red tape tangled around a seven-foot replica of the Statue of Liberty to symbolize, in Delay’s words, “the first step toward freedom for millions of individual Americans and hundreds of thousands of job-creating businesses and industries.”
President Clinton Doubts His Own Judgement. When it comes to protecting public health and safety, President Clinton apparently doubts his own judgement. Under a proposed Senate regulatory moratorium bill, the Regulatory Transition Act (S. 219), federal agencies would be barred from taking regulatory actions for a moratorium period beginning November 9, 1994 and ending December 31, 1995. The moratorium would apply only to economically “significant rulemaking actions” ($100 million impact or greater) and would exempt regulations that respond to imminent threats to human health, safety or other emergencies. In a letter to Senator John Glenn (D-OH), Patrick Griffin, Assistant to the President for Legislative Affairs, outlined the Administration’s opposition to S. 219, saying, “…The term ‘imminent’ is undefined, and is therefore far from clear whether the bill would permit the Administration to take sufficient measures to insure that the American people are not needlessly put at risk.” But under the Regulatory Transition Act, the President may exclude any regulatory action from the moratorium simply by finding in writing that it responds to an “imminent” threat. In other words, the President is permitted to define what “imminent” means. If the President doesn’t trust his own judgement, why should anyone trust his judgement of S. 219? Mark-up of S. 219 began on March 7 in the Senate’s Government Affairs Committee and will continue today (March 9). At press time, four of six Democrat-offered amendments had been defeated. Amendments were approved on duck hunting and airline safety. The bill could be considered on the floor as early as next Wednesday, but Friday (March 17) is a better bet.
March 16, 1995
Regulatory Moratorium Bill Clears Senate Committee — Sort of. The Regulatory Transition Act, S. 219, introduced by Senator Don Nickles (R-OK), was approved by the Senate Government Affairs Committee in a 6-5 vote on March 9. The Senate’s version of the Regulatory Transition Act would suspend certain regulatory actions by federal agencies during a moratorium period beginning November 9, 1994 and ending December 31 of this year. The bill is weaker than the House version of the bill, H.R. 450: The Senate’s version would only apply to rules that are “significant rulemaking actions” (using the definitions under Executive Order 12866) and includes more exemptions than the House version. S. 219 would exempt rules that the President finds are necessary for the enforcement of criminal laws, the conduct of foreign policy, or needed due to imminent threats to human health or human safety; regulatory actions dealing with monetary policy or federally-insured deposits; and rules pertaining to licensing, registration, rates, wages, corporate or financial structures, prices, granting of variances, granting of exemptions, and granting of petition of relief from regulatory requirements. A number of amendments to S. 219 were approved in committee mark-up, some of which further weaken the bill. Added to the list of exclusions to the moratorium were regulations to upgrade safety and training standards for commuter airlines, EPA regulations pertaining to lead exposure from house paint, soil or drinking water; railroad crossing regulations; certain Farm Credit System and Farm Credit Insurance rules; certain negotiated regulations related to Indian self-governance and self-determination; anti-discrimination laws; regulations pertaining to aircraft overflights of national parks; rules relating to compensation of Persian Gulf War veterans for disabilities from undiagnosed illnesses; and aircraft engine safety regulations. Amendments were also approved to expand the scope of the moratorium to include wetland designations and regulations that place restrictions on the recreational or commercial use of public lands. By press time, however, the Senate appeared poised to further water-down the moratorium: An alternative being shopped around by Republicans is a proposal to suspend implementation of any new regulation for 45 days to give Congress the time — if it so chooses – to approve legislation to rescind the regulation.
Endangered Species Act Moratorium Clears Subcommittee Mark-up. A bill proposed by Senator Kay Bailey Hutchinson (R-TX) to establish a moratorium on Endangered Species Act listings, S. 503, emerged from subcommittee mark-up largely intact. As amended, the bill would establish a six month moratorium beginning March 17, 1995 on new listings of “endangered” or “threatened” species. It would establish a similar moratorium on new designations of critical habitat. The measure would allow down-listings from “endangered” to “threatened” species status during the moratorium period. Full committee mark-up is scheduled for March 23.
Emergency Timber Salvage Sales Amendment to Go to Vote, March 15. An “Emergency Salvage Sales Amendment” sponsored by Congressman Charles Taylor (R-NC) and attached to H.R. 1159, a supplemental/recission appropriations bill, will likely come up for a vote on March 15. If approved, the bill would direct the U.S. Forest Service and the Bureau of Land Management to begin emergency salvage timber sales totaling 3 billion board feet and 115 million board feet respectively for each of the next two years. The amendment would also streamline and consolidate many of the administrative and regulatory roadblocks to expedite the salvage operations. The measure is designed to reduce the risk of wildfires, promote forest health, reduce federal fire-fighting expenses and create jobs.
March 24, 1995
Substitute to be Offered to Regulatory Moratorium. Senator Don Nickles (R-OK) and Senator Harry Reid (D-NV) will offer a substitute to the Regulatory Transition Act, S. 219, that would establish a 45-day congressional review period for any “significant” final rule issued by a federal agency. The review period would provide Congress an opportunity to enact a joint resolution of disapproval of the regulation on a fast-track basis if it so chose. The amendment also features a “look-back” feature to allow Congress to review rulemakings issued since November. “Significant” regulations include regulations that: 1) have an annual effect on the economy of $100 million or more or adversely affects in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety or state, local or tribal governments or communities; 2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; 3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or 4) raise novel legal or policy issues arising out of legal mandates, the President’s priorities. The Regulatory Review Act will be offered as a floor amendment to the Regulatory Transition Act, S. 219 (also sponsored by Senator Nickles) which would have suspended certain regulatory actions by federal agencies during a moratorium period beginning November 9, 1994 and ending December 31 of this year. Senator Nickles believes that his alternative is a strong one as it would, unlike the regulatory moratorium bill, provide a “permanent” means of promoting regulatory relief. It is also likely to enjoy bi-partisan support. “[The Nickles-Reid] approach, while different from that of the House-passed H.R. 450 [Regulatory Transition Act], is a sound one and is good policy,” said Bruce Gates, Chairman of Project Relief. “If passed, the Nickles-Reid legislation would become permanent law and would offer an ongoing assurance that the agencies’ interpretation of legislation was not contrary to the intent of Congress… Project Relief is proud to be a part of this bipartisan effort.” The Regulatory Review Act could come up for a floor vote as early as Monday, March 27.
EPA Violated Lobbying Laws, Republican and Democratic Leaders of House Subcommittee Say. The Environmental Protection Agency may have violated the federal Anti-Lobbying Act by producing and faxing out materials opposing the Regulatory Transition Act (H.R. 450/S. 219) to some 150 grassroots groups and organizations, according to Congressman David McIntosh (R-IN), Chairman of the House Government Reform and Oversight Committees’ subcommittee on regulatory affairs and Collin Peterson (D-MN), the subcommittee’s ranking Democrat. In a letter to EPA Administrator Carol Browner, the lawmakers stated, “The concerted EPA actions appear to fit the definition of prohibited grassroots lobbying… The prima facie case is strong that some EPA officials may have violated criminal law.” McIntosh and Peterson have asked Browner to either provide detailed information on EPA’s lobbying activities by close of business Friday or face “more formal subcommittee action,” which could include hearings on the matter.
Bi-Partisan Bill Would “Sunset” Federal Regulations. Congressmen Jim Chapman (D-TX) and John Mica (R-FL) have introduced legislation that would require all existing federal regulations to terminate in seven years unless reauthorized by the appropriate agencies (with guidance from Congress and the Office of Management and Budget) and subject all future regulations to a three year sunset unless reauthorized. Hearings on the measure, called the Regulatory Sunset and Review Act, will be held by the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs on March 28. Subcommittee mark-up is planned for March 31 with full committee mark-up possible on April 4.
April 3, 1995
Reports on Moratorium’s Death Greatly Exaggerated. A substitute to the Regulatory Transition Act (S. 219) introduced by Senators Don Nickles (R-OK) and Harry Reid (D-NV) that would establish a 45-day congressional review period for any “significant” final rule issued by a federal agency was approved by the Senate on March 28 in a 100-0 vote. Contrary to earlier reports by Senate Republicans the substitute is not “conference-able.” Under Senate rules, S. 219 would only be “conference-able” if its original language were identical to the House-approved version of the Regulatory Transition Act, H.R. 450, which it was not. Senators who oppose a regulatory moratorium and their allies in the media used the Senate’s unanimous vote for the Nickles-Reid substitute measure to declare the moratorium “dead.” But the Nickles-Reid Regulatory Review Act now goes to the House where it can be amended and then sent to conference. While Nickles-Reid is a positive first-step in gaining some control over the regulatory monster, many believe it should be approved “in addition to” rather than “instead of” a regulatory moratorium. The Nickles-Reid measure has the virtue of establishing a permanent law to allow Congress to review, and if it wishes, to pass legislation to rescind certain agency regulations. It even features a “look-back” provision to allow review of regulations issued since November 9, 1994. But the review would only apply to those regulations considered economically “significant” ($100 million in impact or greater), or just 21% of the 4,300 new rules that will be issued before the end of this year, permitting some of the most irrational, overly-intrusive regulations to escape congressional scrutiny. The measure also provides for only a 45-day window for congressional review of each regulation, allowing some of the most burdensome regulations to slip through the cracks — particularly if Congress operates on Senate Standard Time. In a related matter, Senate floor action on the broader regulatory reform package is not expected now until sometime in June.
April 22, 1995
House and Senate Regulatory Relief Initiatives Have Significant Differences. Since the Senate’s approval of the Regulatory Review Act (S. 219) on March 28 a number of readers have asked how the measure differs from the House’s regulatory moratorium, the Regulatory Transition Act (H.R. 450). A comparison of the two follows:
Regulatory Transition Act – H.R. 450
- Establishes a moratorium on most rulemakings issued by federal agencies during a specified period of time.
- Applies to rulemakings, regardless of their costs, with several exceptions. Regulations that respond to “imminent” threats to health and safety, for example, are exempted.
- Covers only rulemakings issued from November 20, 1994 to December 31, 1995.
- Offers immediate — though temporary — relief to small business owners and individuals without further action.
- Offers regulatory relief to a broad range of Americans, including small business owners and individuals.
- Temporary, “time out” measure.
Regulatory Review Act – S. 219
- Permits Congress to review final rules issued by federal agencies for 45 days. During that period, Congress could, if it so chose, approve legislation rescinding a rule under special fast-track procedures.
- Applies only to “significant” rulemakings using Executive Order #12866’s definition.
- Covers current and future rulemakings and features a “look-back” provision for rules issued since November 20, 1994.
- Requires additional congressional action to provide regulatory relief.
- Offers regulatory relief only to those impacted by “significant” rulemakings that Congress specifically acts to rescind.
- Permanent law.
April 27, 1995
Senate Regulatory Relief Bill to be Considered in Early June. The Regulatory Reform Act of 1995 (S. 343) was reported out of the Senate Judiciary Committee on April 27. It will likely be considered on the Senate floor the first week of June. However, according to Project Relief Chairman Bruce Gates, the Senate GOP leadership is currently preparing substitute legislation “to address some of the deficiencies” of the bill that were not fully addressed in the committee process. While it’s too early to determine the extent of the changes, Gates anticipates that the thrust of the bill will remain the same.
Second Hearing on “Sunset” Bill to be Held May 2. The House Committee on Government Reform and Oversight Committee’s subcommittee on regulatory affairs will hold a second round of hearings on the Regulatory Sunset and Review Act on Tuesday, May 2. A second round has been scheduled to permit the subcommittee’s minority to raise concerns about the bill. C. Boyden Gray, former Counsel to President Bush, will testify in favor of the legislation. If approved, the Regulatory Sunset and Review Act — sponsored by Congressmen Jim Chapman (D-TX) and John Mica (R-FL) — would require all existing federal regulations to terminate in seven years unless reauthorized by the appropriate agencies (with guidance from Congress and the Office of Management and Budget) and subject all future regulations to a three year sunset unless reauthorized. Subcommittee mark-up could come as early as May 9.
Clean Water Act Reauthorization to Hit House Floor May 10. The House will consider reauthorizing the Clean Water Act next week. H.R. 961 — dubbed by its supporters the “Bi-Partisan Initiative” — will be debated on the House floor beginning May 10. The measure includes provisions on takings, risk assessment and cost-benefit analysis that conform with those approved by the House in March.
May 6, 1995
OSHA Reform Bill to be Introduced in the House. Congressman Cass Ballenger (R-NC) will introduce a bill later this month to reform the Occupational Safety and Health Administration (OSHA). The bill, still in draft form, proposes placing restrictions on OSHA’s issuance of citations; codifying a small business exemption from OSHA inspections; limiting OSHA fines for paperwork to violations that have a direct or immediate relationship to safety and health; restricting OSHA’s use of its “egregious case policy,” under which OSHA issues fines for each instance of a violation; and overhauling the appeals process. While the draft bill is viewed by many as a step in the right direction, it does have several weaknesses, including a provision to establish an “independent” Workforce Protection Standards Board. The Board would consist of six political appointees who together would have the authority to modify, rescind and even promulgate job health and safety regulations. Critics say that this board does not directly address the problem and that OSHA staff could simply be rehired by the board. They also fear that the Board, like all other federal agencies, would grow into a massive bureaucracy and become too powerful, unresponsive and too expensive. A number of business and industry groups — both small and large — have expressed concern about the establishment of a Workforce Protection Standards Board, including the National Association of Manufacturers and the National Roofing Contractor’s Association. “We’re not looking for any additional boards or panels,” said Craig Brightup of the National Roofing Contractor’s Association. “We’re looking for more consultation, streamlining and cuts in OSHA’s budget. OSHA sees businesses in the pejorative and operates in far too punitive a fashion. That’s got to change; we’ve got to root out a culture within the agency.”
Full House to Consider Clean Water Act Amendments Next Week. The Clean Water Act Amendments of 1995, H.R. 961, will be considered by the full House May 10-12. Among H.R. 961’s provisions: (a) risk assessment/cost-benefit analysis, requiring EPA to subject its mandates and regulations to risk assessment and cost-benefit analysis consistent with the provisions of H.R. 9, approved by a wide margin in March; (b) takings protection, reaffirming this basic constitutional right, encouraging the federal government to focus efforts on truly valuable resources and establishing a reasonable definition of wetlands; (c) streamlined regulations, providing state and local officials with a uniform set of guidelines for managing non-point source pollution; and (d) funding, in the sum of $15 billion over five years to the State Revolving Fund to assist communities finance wastewater infrastructure.
Congress to Decide Soon on National Biological Survey Funding. Within the next few weeks, Congress will decide on whether or not to fund the National Biological Survey (NBS) for another year. The NBS, which seeks to map, assess, protect and manage the nation’s biological resources, has been used to greatly increase the power and scope of the Endangered Species Act. When endangered species are found, the NBS moves to cut off grazing permits, timber contracts, farming, water, mining and recreation activities in the area. It can also exert control over private property by threatening landowners and local governments with termination of federal grants, loans, etc. The NBS has never been authorized by Congress.
May 12, 1995
Senators Propose Endangered Species Act Reform. On May 9, Senators Slade Gorton (R-WA), J. Bennett Johnston (D-LA) and Richard Shelby (R-AL) proposed the “Endangered Species Act Reform Amendments of 1995.” According to its sponsors, the measure is designed to “bring people back into the equation” and “restore balance to an act that does not now have balance.” The bill would not change the current Endangered Species Act listings process. However, it would grant the Secretary of Interior sweeping new authority to determine what level of protection is appropriate on a species-by-species basis. This would permit the Secretary to weigh human factors — including cultural and economic impact — of species recovery plans before imposing them. Some private property advocates have argued that while the Gorton proposal has many positive features (including its provisions for improving procedural safeguards and for establishing stricter scientific requirements), it does not go far enough. The Competitive Enterprise Institute, Defenders of Property Rights, The National Center for Public Policy Research, The Heritage Foundation, the Cato Institute, and the National Wilderness Institute in a letter to Senator Gorton wrote: “Real reform necessitates a complete overhaul of the law — something your proposal falls far short of accomplishing… Large corporations have the financial wherewithal to hire the attorneys and biologists necessary to navigate a byzantine bureaucracy and comply with a costly and confusing ESA. Large corporations also tend to have additional lands with which to ‘mitigate’ for ‘incidental takings.’ Small property owners and independent businessmen rarely have such resources. In short, we are not nearly so concerned with the ESA’s statistical impact on economic productivity as we are its impact on the lives of individuals, especially those who cannot afford to abide by its strictures.”
“Corrections Day” Slated to Begin as Early as June. The first “Corrections Day,” a day that would be set aside by the House of Representatives to consider only legislation that seeks to repeal outdated, useless or just plain “dumb” regulations, could be held as early as the first week of June. “Corrections Day” may be held as often as once a week — Congressional leaders are still working out the procedural details.
House Makes Progress on Clean Water Amendments. As the Relief Report goes to press, the Clean Water Amendments of 1995 (H.R. 961) are still being debated on the House floor. Because H.R. 961 has an open rule, opponents of the reform measure have had ample opportunity to propose amendments — most of which have been defeated. A substitute offered by Representative Sherwood Boehlert (R-NY) that would have gutted H.R. 961, eliminating the risk assessment/cost-benefit analysis, flexibility and wetlands reform provisions of the bill, was defeated by a large margin. A final vote is expected today, Friday, May 12.
May 21, 1995
Regulatory Moratorium to Get Second Chance in Senate. It appears that the Regulatory Transition Act (H.R. 450), which would establish a moratorium on most federal rulemakings issued between November 20, 1994 and December 31, 1995, will have a second chance in the Senate. This week, the House sent the Regulatory Review Act (S. 219) back to the Senate — with H.R. 450 rather than S. 219 language. The Regulatory Review Act, a substitute to the Senate version of the Regulatory Transition Act co-sponsored by Senators Don Nickles (R-OK) and Harry Reid (D-NV), was approved by the Senate on March 28 in a 100-0 vote. Senator Nickles was also the Senate sponsor of the Regulatory Transition Act.
House Approves Clean Water Amendments of 1995. H.R. 961 — the Clean Water Act Amendments of 1995 — was approved by the House on May 16, 240-185, with some modest changes. An amendment by Representative Sherwood Boehlert (R-NY) to restore a law protecting coastal zones from farm run-off was approved, but was subsequently modified by an amendment offered by Representatives W.J. “Billy” Tauzin (D-LA) and Thomas Petri (R-WI) giving states greater authority in the administration of the law. Another amendment offered by Representative Boehlert that would have expanded the definition of “wetlands” was defeated, 185-242. Commenting on the approval of the measure, Charlie Ingram of the Clean Water Industry Coalition said, “This bill was developed through a strong bi-partisan consensus, which brought the support of the private and public regulated communities, including the governors, cities and towns, all of whom are frustrated by the out-of-date, rigid command-and-control of the present law… The new model of the Clean Water Act can provide more protection at less cost, costs that ultimately are borne by everybody in America.”
Property Rights Hearing Scheduled. The House Resource Committee will hold general oversight hearings on property rights on June 13. The hearings are being organized by the Task Force on Property Rights, Chaired by Congressman John Shadegg (R-AZ).
“Sunset” Bill Emerges from Subcommittee Mark-up. A substitute to the Regulatory Sunset and Review Act (H.R. 994) — sponsored by Representatives John Mica (R-FL) and Jim Chapman (D-TX) — was approved by the National Economic Growth, Natural Resources and Regulatory Affairs Subcommittee of the Government Reform and Oversight Committee on May 18 on a voice vote. The substitute, offered by Subcommittee Chairman David McIntosh (R-IN), narrows H.R. 994 to apply to only regulations deemed to be “significant” ($50 million in impact or greater) to reduce the risk of expanding the bureaucracy. As approved by the subcommittee, the measure would require existing “significant” federal regulations to terminate in seven years unless reauthorized by the appropriate agencies (with guidance from Congress and the Office of Management and Budget) and subject future “significant” regulations to a three year sunset unless reauthorized.
Subcommittee-Approved Flow Control Bill Termed “Extremely Dangerous.” The House Subcommittee on Commerce, Trade and Hazardous Materials, chaired by Representative Mike Oxley (R-OH), reported out a flow control bill on May 18 that critics have labeled “Extremely Damaging.” According to Browning-Ferris Industries, the bill as approved by the subcommittee would allow anti-competitive flow control laws to remain in place for generations.
May 26, 1995
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.
June 8, 1995
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 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.
June 23, 1995
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.
June 28, 1995
Senate Floor Action on Regulatory Reform Package Delayed Again. Floor action on the substitute to the Comprehensive Regulatory Reform Act of 1995 (S.343) that was to be considered on the Senate floor yesterday (June 27) was again delayed as Republican lawmakers began talks with Democrat leaders in an effort to avert an anticipated filibuster of the bill. Those talks broke down and by press time (3:30 P.M.), S. 343 appeared likely to reach the Senate floor by 4 P.M. today (June 28). With recess scheduled for this Friday, June 30, proposed amendments to the bill are unlikely to be taken up until after the recess. A filibuster also appears likely. The recent addition of Senator J. Bennett Johnston (D-LA) to the bill, however, greatly improves the odds that a cloture petition will be successful.
July 4, 1995
Action on Comprehensive Regulatory Reform Act Underway. A bipartisan substitute to the Comprehensive Regulatory Reform Act of 1995 (S. 343), crafted by Senators Robert Dole (R-KS), Orrin Hatch (R-UT), Howell Heflin (D-AL) and J. Bennett Johnston (D-LA), hit the floor on June 28. Debate on the measure will resume July 10, after the 4th of July recess. Senators John Glenn (D-OH), Carl Levin (D-MI)), Edward Kennedy (D-MA) and John Kerry (D-MA) are expected to offer a substitute that, if approved, would gut the measure. The substitute, regulatory relief advocates say, must be defeated before real regulatory reform can be approved. The latest version of S. 343, appears to be gaining momentum as Senator John Breaux (D-LA) reportedly will not only support the bill, but will encourage President Clinton to back it.
Congressman McIntosh Holds Hearings on Taxpayer Funding of Lobbying — Legislation to be Introduced: On June 29, Congressman David McIntosh (R-IN), Chairman of the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, held a hearing on taxpayer-funded political advocacy. Since 1993, the Environmental Protection Agency has distributed more than $90 million in federal grants to special interest groups, including groups that lobby for increasing regulations such as the Natural Resources Defense Council and the Sierra Club. In an opening statement, Congressman McIntosh said, “Americans will be shocked to know that taxpayers are paying special interest lobbyists to walk the halls of Congress, executive branch offices… to influence their lawmakers… The IRS conservatively reports the federal government gave away more than $39 billion to over 40,000 non-profit organizations in 1990 alone.” Congressman McIntosh along with Congressmen Ernest Istook (R-OK) and Bob Ehrlich (R-MD) have drafted a bill to curtail government financing of political advocacy.
July 14, 1995
Regulatory Reform Bill Weakened by Amendment — “Mom and Pop” to Take a Hit. On July 11, the Senate approved an amendment to the Comprehensive Regulatory Reform Act (S. 343) that substantially reduces the scope of the measure. By a vote of 53-45, the Senate approved an amendment offered by Senator J. Bennett Johnston (D-LA) to apply S. 343’s cost-benefit analysis and risk assessment provisions only to those regulations with an annual economic cost of $100 million or more. Under an agreement reached between Senator Robert Dole (R-KS) and Senator Johnston, the bill had established $50 million as the threshold. Small “mom and pop” operations and individuals will take the biggest hit from the change as any regulation — even those with negligible overall impact on the economy — can represent an insurmountable cost to those of modest means. Joining the chamber’s 46 Democrats in support of the amendment were Republicans John Chafee (RI), William Cohen (ME), Mark Hatfield (OR), James Jeffords (VT), William Roth (DE), Olympia Snowe (ME) and Arlen Specter (PA). On July 12, the Senate approved another amendment reducing the scope of the regulatory reform measure. By a vote of 69-31, the Senate approved an amendment — also offered by Senator J. Bennett Johnston — to waive cost-benefit analysis and risk assessment studies for certain meat and poultry inspection regulations proposed by the Agriculture Department. The waiver would only apply to regulations for which the agency has issued notice of proposed rule changes by April 1, 1995. The amendment was offered to undercut a broader amendment offered by Senate Minority Leader Tom Daschle (D-SD) that was defeated 49-51.
Now, the Good News. On July 10, in a 60-36 vote, the Senate approved an amendment to S. 343 offered by Senators Sam Nunn (D-GA) and Paul Coverdell (R-GA) that would require federal agencies to conduct cost-benefit analyses for proposed regulations that have a significant impact on a substantial number of small businesses. With the change, all regulations now subject to the Regulatory Flexibility Act of 1980 would be subject to S. 343’s cost-benefit analysis and periodic review provisions. The measure would also partially mitigate losses in regulatory relief to small business resulting from the Senate’s decision to raise the cost-benefit analysis and risk assessment provisions threshold to $100 million. Senate Democrats voting for this strengthening amendment included: Max Baucus (MT), Jeff Bingaman (NM), Kent Conrad (ND), Byron Dorgan (ND), James Exon (NE), Russ Feingold (WI), Diane Feinstein (CA), Bob Graham (FL), Howell Heflin (AL), Ernest Hollings (SC), Bob Kerrey (NE), Sam Nunn (GA), Charles Robb (VA) and Jay Rockefeller (WV). Republicans joining with 32 Democrats in opposition to the amendment were: John Chafee (RI), William Cohen (ME), Ted Stevens (AK) and William Roth (DE). The Senate also approved, in a 96-0 vote, an amendment that would give the Small Business Administration some input on the order in which regulations currently on the books are reviewed by other agencies. This measure will help ensure that reviews of regulations substantially impacting small businesses will be treated as a priority by other federal agencies.
July 22, 1995
Balanced Budget Amendment. On July 20, Senate Majority Leader Robert Dole (R-KS) pulled his Comprehensive Regulatory Reform Act (S.343) from floor consideration after he failed for the third time in less than a week to obtain the 60 votes needed to shut off debate on the legislation. The vote was 58-40, with Democrat Senators J. Bennett Johnston (D-LA), John Breaux (D-LA), Sam Nunn (D-GA) and Howell Heflin (D-AL) joining the chamber’s 54 Republicans in voting to end debate. Earlier attempts for cloture on July 17 and 18 failed 48-46 and 53-47 respectively. The political maneuvering during the ten-day regulatory reform debate was reminiscent of another contentious debate earlier this year – the debate over the balanced budget amendment. Each time Dole agreed to change his bill to accommodate Democrat moderates, the moderates would move their “goal posts.” Before Senator Dole removed his bill from further consideration, it had been considerably watered-down. Amendments were approved limiting the bill’s cost-benefit analysis provisions to regulations with an economic impact of $100 million or more and waiving these provisions for certain beef and poultry inspections. Key provisions relating to Superfund were also eliminated. These changes were in addition to already substantial changes the bill underwent in negotiations with Senator Johnston. “I assume we could have had a package with 100 votes, but it wouldn’t have been worth anything,” Senator Dole said, commenting on his decision to withdraw S. 343. Eleven Senators whose terms expire in January 1997 did not vote for cloture – and thus voted against regulatory reform. They included Senators David Pryor (D-AR), Paul Simon (D-IL), Tom Harkin (D-IA), John Kerry (D-MA), Carl Levin (D-MI), Paul Wellstone (D-MN), Max Baucus (D-MT), J. James Exon (D-NE), Bill Bradley (D-NJ), Claiborne Pell (D-RI) and Jay Rockefeller (D-WV). Though individuals, families and businesses hoping for prompt regulatory relief suffered a significant setback this week, some observers believe they will have the last laugh – when they go to the polls in November 1996.
Where’s Clinton’s “Useless Regulations List?, GOP Leaders Ask. House Majority Whip Tom DeLay (R-TX) and Representative Jan Meyers (R-KS), Chairman of the House Small Business Committee, want to know what happened to President Clinton’s list of “useless regulations.” In March, President Clinton ordered agency heads to conduct reviews of rules and regulations they enforce and provide him with a list of those that could be scrapped. Though the list was to be completed by June 1, no one outside the White House has seen it thus far. “As far as I know, no such comprehensive list has been delivered to the president and it certainly has not been made public,” said Representative DeLay during recent remarks before the Small Business Committee. “Despite his seemingly good intentions, there is little evidence that any reduction in the regulatory burden is taking place. In fact, the opposite is true.”
Appropriations Subcommittee Terminates Some of “Dirty 30” Regulations. On July 10, the Appropriations Subcommittee on VA, HUD and Independent Agencies approved a bill defunding several Environmental Protection Agency regulations included in the “Dirty 30” hit list, assembled by Representative David McIntosh (R-IN), Chairman of the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs. Among those terminated: The Federal Operating Permit Rule; the Toxic Release Inventory (chemical use); the Refinery Maximum Achievable Control Technology Standard; the Great Lakes Clean Water Quality Guidance; the Environmental Self Audits; the Emissions Testing (Inspection and Maintenance Programs); and the Trip Reduction (Employee Commute Options Requirement).
Senate Subcommittee Mark-up Slated for National Biological Service. Senate Subcommittee mark-up for funding of the Department of Interior’s National Biological Service will likely be July 26 or 27, with full Appropriations Committee mark-up expected on July 28. The finishing touches on the Chairman’s mark (Senator Slade Gorton (R-WA)) are expected to be completed by Monday, July 24. The House approved Interior appropriations on July 18, 244-181. The House slashed NBS funding by more than 35%. The National Biological Service (NBS), formerly known as the National Biological Survey, was established to map and assess the nation’s biological resources ostensibly for the purpose of protecting and managing natural resources. Though never formally authorized by Congress, the NBS’s budget has been in the $160-170 million range since its inception in 1993. Because the NBS’s mission is to survey all biological resources — both public and private — it has posed a serious threat to private property rights.
August 3, 1995
Analysis: “It Just Doesn’t Ring True” – What Long Distance Carriers Are Saying About H.R. 1555. MCI, Sprint, AT&T and other long distance companies have launched a media campaign to convince the public – and more importantly, Members of Congress – that the telecommunications bill being considered by the House and up for a vote as early as tonight would create local monopolies of telephone and cable services and thwart competition. To borrow MCI’s jingle in its ongoing advertising campaign against AT&T, “it just doesn’t ring true.” The long distance giants are probably more concerned about losing some of their 95% share of the long distance market to the Baby Bells than about monopolies. Under an earlier version of the bill, long distance carriers would have been given access to the Bells’ local networks – at a discount – so that they could enter the local telephone market. But individual Bell companies would only be permitted to enter the long-distance market once a “facilities-based” competitor was established in its market. In other words, a physical network of wires comparable to its own would have to be built by a competitor before a Bell company would be permitted to compete in the long distance market. As MCI, AT&T and other long distance companies would have had access to the local markets through the Bell networks, they would have no incentive to build their own networks and indeed their incentive would have been to build no networks at all to ensure that the Baby Bells stayed out of the long distance market as long as possible. This one-sided arrangement was eliminated from the bill – much to the distress of long-distance’s big three – in a package of amendments to be offered by Commerce Committee Chairman Tom Bliley (R-VA). The two key questions on H.R. 1555 should be: 1.) Is it an improvement over the status quo? and 2.) does it increase competition? The answer to both questions is yes – if only marginally. It is a positive, first tentative step toward greater competition in the telecommunications industry. Among H.R. 1555’s positive features: It eliminates many of the industry-wide barriers to competition in voice and video markets; it provides incentives to open up telephone markets to competition; it eliminates some of the regulations imposed on the cable industry; and it loosens broadcast ownership restrictions. Among its failings: It fails to eliminate impediments to international investment; it expands subsidies, which invariably leads to greater regulation of the subsidized activity ; fails to privatize the radio spectrum; and fails to reduce FCC bureaucracy and actually expands it. There is also the risk that a provision requiring television manufacturers to insert into their products “V-chips,” devices parents could use to prevent their children from viewing certain programming, could be approved as well as a provision that would hold computer online service providers liable for obscene or indecent materials transmitted onto the Internet using their services. Both measures would, if approved, represent enormous new regulatory burdens. Some observers have even begun to label them anti-family as they place responsibility for children’s interests with the government rather than with parents.
Regulatory Relief Proponents Lose — Then Win Vote on EPA Restrictions: On July 28, an amendment to the VA, HUD and Independent Agencies appropriations bill offered by Representatives Louis Stokes (D-OH) and Sherwood Boehlert (R-NY) to strip the measure of restrictions placed on Environmental Protection Agency (EPA) funding was approved by the House 212-206. But that vote was reversed on July 31 when the Stokes-Boehlert amendment failed to obtain a majority vote. The vote was 210-210. The appropriations bill will place restrictions on EPA’s fiscal year 1996 funds for regulatory action under the Clean Water Act, the Clean Air Act, the Emergency Planning and Recovery Act and the Comprehensive Environmental Response Compensation and Liability Act, among others until such time as these laws have been reformed by Congress. Joining with 160 Democrats in voting for the amendment — and thus against regulatory relief — were 50 Republicans. These include: Charles Bass (NH), Rick Lazio (NY), Doug Bereuter (NE), James Leach (IA), Sherwood Boehlert (NY), Frank LoBiondo (NJ), Michael Castle (DE), James Longley (ME), Lincoln Diaz-Balart (FL ), William Martini (NJ), Vernon Ehlers (MI), Constance Morella (MD), Robert Ehrlich (MD), John Porter (IL), Phil English (PA), Jack Quinn (NY), Harris Fawell (IL ), Jim Ramstad (MN), Michael Forbes (NY), Ralph Regula (OH), Jon Fox (PA), Ileana Ros-Lehtinen (FL), Gary Franks (CT), Marshall Sanford (SC), Bob Franks (NJ), Jim Saxton (NJ), Wayne Gilchrest (MD), Joe Scarborough (FL), Paul Gillmor (OH), Steven Schiff (NM), Benjamin Gilman (NY), Clay Shaw (FL), Porter Goss (FL ), Christopher Shays (CT), James Greenwood (PA), Christopher Smith (NJ), Stephen Horn (CA), Peter Torkildsen (MA), Amo Houghton (NY), Fred Upton (MI), Nancy Johnson (CT), Curt Weldon (PA), Sue Kelly (NY), Rick White (WA), Scott Klug (WI), Frank Wolf (VA), Steve LaTourette (OH), Bill Young (FL), Marge Roukema (NJ) and Dick Zimmer (NJ). The Sierra Club has labeled these members heroes and has been urging its grassroots membership to place “thank you” calls to their offices.
August 18, 1995
Modest TeleCom Reform Could be Watered-Down Further in Conference. On August 4, the House approved a modest telecommunications bill (H.R. 1555) in a 305-117 vote, paving the way for the first overhaul of telecommunications policy since Congress approved the Communications Act in 1934. But there are significant differences between the House-approved telecommunications bill and a weaker Senate bill (S. 652), approved in June. House and Senate conferees are expected to take up the TeleCom bill when they return from recess in early September. The following outlines some of the key differences between the two bills:
- The Internet: H.R. 1555 would extend current federal laws governing the distribution of “obscene” materials to materials transmitted by computer. It would also make the transmission of “indecent” materials to minors a federal crime. Although Internet access providers would be permitted to restrict access to obscene or otherwise objectionable materials, these companies would incur no legal responsibility for materials loaded onto the Internet by users of its services.
- Long Distance Services: H.R. 1555 would permit a Baby Bell to enter the long distance market in a state, but only after the FCC determines that the company has complied with the bill’s network sharing requirements (under which the Bells are required to sell access to their local networks to such long distance carriers as AT&T at a discount). To offer service in a state, a Baby Bell would have to have a competitor in at least one community in the state. It would also be required to set-up a separate subsidiary for long distance services – but only for the first 18 months.
- V-Chip: H.R. 1555 includes a provision requiring television manufacturers to insert into their products “V-chips,” devices parents could use to screen what their children view on television. The provision would also establish voluntary rating guidelines – to be developed by the FCC, should broadcasters fail to develop their own rating systems.
- Local Telephone Services: H.R. 1555 would give local phone companies six months to negotiate agreements to allow competitors access to their networks. Small companies would be exempt from these requirements unless state authorities determined otherwise.
- The Internet: S. 652 would make it a crime for one person to “harass” another with objectionable materials – using the Internet, faxes or other telecommunications devices. It would outlaw computer transmissions of “indecent” materials to children and obscene materials to anyone. It would also establish penalties of up to $100,000 in fines and two years in jail for those found in violation of the law.
- Long Distance Services: S. 652 would also permit a Baby Bell to enter the long distance market in a state after it has complied with the bill’s network sharing requirements. But the bill would also require that the FCC first determine that permitting the Bell to enter into the long distance market would be in the public interest. It would also require the Bells to establish permanent, separate subsidiaries to offer long distance.
- V-Chip: S. 652 also includes a provision requiring television manufacturers to insert the controversial “V-chips” into their products. It would also establish rules rather than guidelines for program rating – to be developed by a presidential commission.
- Local Telephone Services: S. 652 would give local phone companies 160 days to negotiate agreements to allow competitors access to their networks. Small companies would only be exempt from these requirements by state or FCC action.
September 1, 1995
Regulatory Reform Legislation Could Save “Baby Tuna.” On August 4, Representative Randy “Duke” Cunningham (R-CA) introduced legislation that could offer a reprieve for “baby tuna.” In recent years, tuna fishermen have been forced to limit their fishing to waters without significant dolphin stocks. Since dolphins tend to swim with schools of large tuna, this means fishermen must fish in waters with concentrations of less mature tuna. The result: Many of the fish caught are too small and discard rates — or the “bycatch” — can be as high as 30%. Representative Cunningham’s bill could help save these tuna by overturning the statutory definition of “dolphin safe” — which is far too strict. Recent improvements in the survival rate of dolphins accidentally caught in nets — now close to 100% — has rendered the definition obsolete. “The eastern Pacific fleet could reach absolute zero marine mammal mortality rates and never be able to label their product ‘dolphin safe,'” said Teresa Platt, co-director of the Fishermen’s Coalition. “Ironically, substituting other gear causing high levels of marine mammal kills would produce a product that could be labeled ‘dolphin safe.'” Representative Cunningham’s bill would also lift an embargo against tuna caught by fishermen in the eastern tropical Pacific in recognition of their near perfect dolphin survival rate.
September 15, 1995
Representatives Young and Pombo Introduce ESA Reform Bill — Groups Say Bill “Falls Short.” On September 6, Representatives Don Young (R-AK) and Richard Pombo (R-CA) unveiled the Endangered Species Conservation and Management Act of 1995 — a measure designed to correct some of the abuses of the Endangered Species Act. But despite many positive features, the bill falls short of the goals envisioned by the Grassroots ESA Coalition, an alliance of hundreds of grassroots property rights, wise use and concerned citizen groups. “Providing habitat for endangered species should be encouraged, not discouraged, by the ESA,” said Ike Sugg of the Competitive Enterprise Institute, a member of the coalition. “While the Young-Pombo bill does try to offset the ESA’s negative incentives with some positive incentives, this will at best be an expensive way to undo the environmental damage caused by the law’s regulations. Why not go the more direct and cheaper route and remove the law’s disincentives?”
September 26, 1995
Reform Needed to Save Teen Jobs to be Subject of October “Corrections Day.” The House of Representative’s second “Corrections Day” — a day set aside for the consideration of legislation that seeks to repeal outdated, useless and just plain dumb regulations — will take up H.R. 1444, a bill introduced by Representatives Tom Ewing (R-IL) and Larry Combest (R-TX) that would allow 16- and 17-year-old grocery store employees to load safety device-equipped balers and compactors, thus saving teen jobs. Senator Larry Craig (R-ID) has introduced a similar measure (S. 744) in the Senate. Since 1954, grocery employees under the age of 18 have been barred from “operating or assisting to operate” balers, machines used to crush cardboard, under Hazardous Occupation Order Number 12 (HO 12). Under the regulations, teens under the age of 18 are not even permitted to load these machines. HO 12 is a prime example of a regulation that is outdated: According to a 1954 Department of Labor report, the most serious risk posed by operation of baler was “for a person’s arm to be caught by the descending plunger should someone else operate the control mechanism while paper was being manually placed in the baler.” But these injuries can not occur with modern, safety device-equipped balers used by 90% of the nation’s grocers. Teens are forced to pay a high price for the regulation — reduced employment opportunities.
October 6, 1995
Young Seeks Transfer of Tongass National Forest to People Who Can Care for it Best. On September 28, Representative Don Young (R-AK), Chairman of the House Resources Committee, introduced the Tongass Transfer and Transition Act (H.R. 2413), to permit the transfer of the 17 million acre Tongass National Forest to the State of Alaska. Under the measure, Alaska’s legislature and the Governor could elect to take over the Tongass, transferring control of this vital natural resources from the hands of remote, unresponsive federal bureaucrats into the hands of people who know how to care for the land best — Alaskans. “Since Statehood, few have been happy with federal Tongass decisions. I’ve heard from tourism operators who wait three years to get access permits in the Tongass. Fishermen complain that existing protection for fisheries are not enforced. Crabbers can’t even store their crab pots on the beaches. Cabin permits become federal issues when simple improvements are made,” Representative Young said. Public opinion in Alaska favors the transfer. A September McDowell Group public opinion survey found that 55% of Southeast Alaskans favor Tongass transfer while only 34% oppose it.
Shadegg Introduces Non-Regulatory, Incentive-Based Species Protection Plan. On September 19, Representative John Shadegg (R-AZ) introduced the Endangered Species Recovery and Conservation Incentive Act of 1995 (H.R. 2364), a non-regulatory approach to species protection, with nine original cosponsors. Among the sponsors are Representatives Tom DeLay (R-TX), Joe Barton (R-TX), Helen Chenoweth (R-ID), John Doolittle (R-CA), Steve Largent (R-OK), David McIntosh (R-IN), Lamar Smith (R-TX), Bob Stump (R-AZ) and George Radanovich (R-CA). The measure would offer a number of incentives for landowners to promote private conservation efforts, including tax credits and estate tax deferrals for those who contribute to species conservation. The bill would also impose stiffer penalties on those who deliberately kill or injure endangered and threatened species. The non-regulatory nature of the Shadegg approach would end the adversarial relationship that currently exists between landowners and wildlife. In so doing, it would eliminate the perverse incentives found in the current law that result in habitat destruction. The measure’s incentives would be funded primarily through admission fees to national parks and other federal lands where fees are already charged. An analysis of the bill has been published by Defenders of Property Rights. The group has also published an analysis of the Endangered Species Conservation and Management Act (H.R. 2275) sponsored by Representative Don Young (R-AK) and Richard Pombo (R-CA).
Will Senator Dole’s Regulatory Reform Bill be Resurrected? Senator Charles Robb (D-VA) is spearheading an effort to resurrect S. 343, the comprehensive regulatory reform measure introduced by Senate Majority Leader Robert Dole (R-KS). Apparently some Democrat lawmakers are concerned that they may be blamed for killing chances for regulatory reform in the 104th Congress, so Senator Robb has been shopping his version of the Dole bill around to Democrat offices. The business and industry coalition group Alliance for Reasonable Regulations reportedly backs the plan while environmental groups such as the Sierra Club oppose it. Prospects for meaningful regulatory reform remain slight. In July, Senator Dole pulled S. 343 from the floor after he failed to obtain the 60 votes needed to shut off debate on the legislation for the third time in less than a week. The vote was 58-40, with four Democrats joining 54 Republicans in voting to end debate. The recent departure of Senator Robert Packwood (R-OR) means three more votes must be found if a regulatory reform package is to be approved.
Vote on McIntosh’s Regulatory “Sunset” Bill Likely Within Next Two Weeks. The full House could vote on the Regulatory Sunset and Review Act (H.R. 994), sponsored by Representative David McIntosh (R-IN), as early as next week. The measure would require federal regulations to review all existing regulations having an economic impact of $100 million or more every seven years. Those regulations that agencies do not review would be automatically rescinded under the proposal. A similar measure (S. 511) has been sponsored by Senator Spencer Abraham (R-MI).
October 17, 1995
Representative John Shadegg Introduces Tenth Amendment Protection Bill. On September 12, Representative John Shadegg (R-AZ) introduced the Enumerate Powers Act (H.R. 2270), which would require that Congress cite the constitutional authority for every bill it approves. The Tenth Amendment of the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” For too long the federal government has ignored the Tenth Amendment and run roughshod over the rights and authority the Constitution reserves to the states and to the people respectively,” said Representative Shadegg in introducing the bill. “Congress must look at the Constitution as required by the Tenth Amendment before it starts writing a federal solution in an area in which it has no jurisdiction. The federal government is too big and is involved in too many areas which are beyond its constitutional authority.”
Resource Committee Approves Young-Pombo Endangered Species Reform Bill. On October 12, the House Resource Committee approved the Endangered Species Conservation and Management Act of 1995 (H.R. 2275) sponsored by Representative Don Young (R-AK) and Richard Pombo (R-CA), 27-17, after almost ten hours of debate. Representatives Young and Pombo accepted an amendment proposed by Representative Jim Longley (R-ME) to broaden the bill’s definition of species “takings.” The definition of a “taking” had been limited to “direct action” resulting in harm to listed species, but was expanded through the Longley amendment to “proximate and foreseeable action” resulting in such harm. To help ameliorate the impact of the amendment, the bill’s criminal penalties provisions were also amended. Criminal penalties for species “takings” would only apply in the event that a taking is intentional. On balance, the amendments would weaken the bill. A stronger Endangered Species Act reform measure, the Endangered Species Recovery and Conservation Incentive Act of 1995 (H.R. 2364), has been introduced by Representative John Shadegg (R-AZ).
McIntosh to Hold Fifth Hearing on Welfare for Lobbyists. Representative David McIntosh (R-IN), Chairman of the House Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, will hold a fifth hearing on government funding of political advocacy groups on October 18. Political advocacy groups receiving federal funding are among the most vocal advocates of increased regulation. McIntosh’s hearing will feature testimony from the National Council of Senior Citizens (NCSC), a group that receives 96% of its funding from the U.S. taxpayer, but aggressively lobbies Congress.
October 25, 1995
Stokes to Offer Motion to Delete EPA Riders. When the Veterans Affairs, HUD and Independent Agencies appropriations bill (H.R. 2099) goes to conference next week, Representative Louis Stokes (D-OH) will offer a motion to instruct House conferees to delete all of the 17 riders approved by the House in July that limit activities of the Environmental Protection Agency. Republican and Democrat Members of the House who support common-sense regulatory reform plan to offer an amendment to Representative Stoke’s motion that would instruct conferees to consider each rider separately. This would enable them to retain those riders that would improve environmental quality and those that would have a positive impact on the economy — if they so chose.
Full Committee Mark-Up on Heritage Areas Bill Possible Next Week. The National Heritage Areas Act (H.R. 1280) could be marked-up by the full House Resource Committee as early as next week. The grassroots private property movement vehemently opposes the bill because, among other things, it would give the National Park Service de facto land-use planning powers over private land. As Kraig Saunders of Allied Owners Inc. put it in the September issue of the Land Rights Letter, “The program is a deliberate, calculated attempt by the Park Service to get around the Doctrine of Residual Powers (9th and 10th Amendments) which prohibits federal planning or zoning of private lands.”
Representative Clinger to Introduce Bill to Bar Lobbying by Federal Agencies. Representative William Clinger (R-PA) has written the “Federal Agency Anti-Lobbying Act” to clarify already existing laws that restrict use of public funds for lobbying activities. The bill would bar the use of public funds by federal agencies for purposes of organizing grassroots efforts to aid or hinder legislation pending before Congress. According to bill sponsors, the proposed measure was prompted by Executive Branch conduct, “which has increasingly resulted in the expenditure of appropriated funds in an attempt to create public opposition to pending legislation. Many of the actions in question appear to have violated the criminal provisions of 18 USC § 1913. However, the present and previous Administrations have interpreted §1913 narrowly in a manner which, effectively, eviscerates its restrictions.”
November 9, 1995
Key Regulatory Reform Initiatives Approved as Amendment to Debt Limit Extension Bill. The House approved significant elements of the regulatory reform agenda — which had been approved by the House earlier this year, but stalled in the Senate — as an amendment to the Debt Limit Extension bill today in a 257-165 vote. The amendment includes Cost-Benefit Analysis and Risk Assessment provisions with a Supermandate and judicial review; Regulatory Flexibility Act amendments; Regulatory Accounting; repeal of the Delaney Clause; and the Regulatory Review Act (S. 219). The vote was viewed as a stunning victory for regulatory relief, given the success last week of a motion sponsored by Representative Louis Stokes (D-OH) instructing House conferees to delete the EPA Riders from the VA, HUD and Independent Agencies appropriations bill. The measure now goes to the Senate.
Superfund Reform Bill Not So Super Say Some Regulatory Relief Advocates. On November 7, Michael Oxley (R-OH), Chairman of the Commerce Committee’s Commerce, Trade and Hazardous Materials Subcommittee, Commerce Committee Chairman Tom Bliley (R-VA) and Sherwood Boehlert (R-NY), Chairman of the Transportation and Infrastructure Committee’s Water Resources and Environment Subcommittee, held a Capitol Hill press conference to announce amendments to the Reform of Superfund Act (ROSA), H.R. 2500, that they said would expand support for the reform measure while guaranteeing relief for America’s small businesses. “I have some very good news: Superfund’s reign of terror over small businesses is about to come to an end,” said Representative Oxley. “I intend to offer an amendment that will ensure that small businesses across the country will — for the first time — be treated fairly in spite of Superfund’s inherently unfair liability system.” Some regulatory relief advocates aren’t so sure. H.R. 2500 — with the amendments — would exempt small businesses that contribute less than 1% of waste to Superfund sites from retroactive liability (at sites designated prior to 1987). But in a move that is sure to be a boon to trial lawyers, the measure would require a liable firm — or potentially responsible party (PRP) — to pay the attorney fees of a smaller PRP, if the larger firm nominates the smaller firm as a PRP in error. This represents a real problem for the larger firm as it has no way of determining whether or not the smaller PRP has contributed less than 1% of the site waste and promises to pit small firms against large ones in endless litigation. H.R. 2500 also provides a special liability exemption for battery and used oil recycling sites — leading some groups to cry foul. “The recycling issue should not be addressed at the expense [of other parties],” Paul Hirsh of the Chemical Manufacturers Association, told the Bureau of National Affairs (November 8 issue). Even the National Federation of Independent Business, which has endorsed H.R. 2500, has expressed some reservations about the compromise language.” Although NFIB believes that repealing retroactive liability is the best and fairest way to reform Superfund, Chairman Oxley’s amendments would get the vast majority of small businesses out from under the horrendous liability scheme.”
Western Representatives Press for Delisting of Stephen’s Kangaroo Rat. Representatives Ken Calvert (R-CA), Don Young (R-AK), Sonny Bono (R-CA), Ron Packard (R-CA), Jay Kim (R-CA), Richard Pombo (R-CA) and Jerry Lewis (R-CA) sent a duplicate of the Riverside County Farm Bureau’s petition to have the Stephen’s kangaroo rat delisted as an endangered species to U.S. Fish and Wildlife Service on October 31. The Farm Bureau learned from the Carlsbad office of the Fish and Wildlife Service (FWS) 75-days after submitting their original petition — and 15-days before a 90-day finding period was to expire — that the FWS did not have the petition materials. The Farm Bureau has argued that the “K-Rat” should have never been listed in the first place. “There is an abundance of information that indicates the Service knew the species was more widespread, prolific and persistent than they were saying when they listed it in 1988,” said Mark Draper, president of the Farm Bureau. “Yet the Service just ignored that favorable information, covered over the gaping holes in the information they did use, and went ahead and listed it as endangered anyway.”
November 22, 1995
Representative Chabot Introduces Bill to Save the Environment, End Agriculture
Subsidies. Representatives Steve Chabot (R-OH) and Major Owens (D-NY) have introduced legislation that could help save the environment. The legislation, the Fairness in Agriculture Act (H.R. 2523), would take the federal government out of the agriculture business entirely, helping the environment in the process. According to a recent study by the Competitive Enterprise Institute, the current farm policy wreaks environmental havoc by, among other things, encouraging farmers to use more pesticides and fertilizers then they would otherwise. This occurs because whenever the federal government wishes to reduce agricultural surpluses it simply places restrictions on the number of acres it permits to be planted of a given commodity. With fewer acres allotted, farmers use more chemicals and fertilizers to increase crop yields — and therefore profits — per acre. The complete elimination of subsidies — as proposed by Representatives Chabot and Owens — could reduce chemical use per acre by up to 35% and fertilizer use by up to 29% per acre, according to CEI. “The federal government simply does not belong in agribusiness,” said Representative Chabot. “Unlike the current politically-inspired patchwork of subsidies… Our bill is broad-based and fair: We act even-handedly to get the federal government out of the agriculture business entirely.”
Democrat Lawmakers Release Congressional Research Service Report on Secondhand Smoke. Reports indicate that President Clinton intends to stress his Administration’s commitment to increasing tobacco regulations in his campaign for re-election next year. But the President’s strategy may be undermined by a Congressional Research Service (CRS) report commissioned by two fellow Democrats: anti-tobacco Representative Henry Waxman (D-CA) and Senator Wendell Ford (D-KY). The 75-page CRS report, “Environmental Tobacco Smoke and Lung Cancer Risk,” released November 14, raises significant questions about the reliability of EPA and OSHA studies used as the basis for regulations banning workplace smoking, noting, for example, that “the EPA made no attempt to assess the lung cancer risk from occupational (i.e. workplace) exposure…” Senator Ford commented, in part: “In the twenty months CRS has conducted this review, their work finds no basis for continuing with forced smoking bans. Given this information, I think it’s time for Big Brother government to get out of the lives of working adults.” Another Democrat, Representative Scotty Baesler (D-KY), told the Associated Press: “The CRS report proves what we’ve been saying all along, OSHA has been blinded by bad science.”
December 6, 1995
Chairman Clinger to Continue Fight for Restrictions on Agency Lobbying. Last week, William Clinger (R-PA), Chairman of the House Government Reform and Oversight Committee, proposed an amendment to the Lobby Disclosure Act (H.R. 2564) that would have sharply curtailed lobbying activities by federal agencies. The amendment, the Federal Agency Anti-Lobbying Amendment, failed to be approved by the House, due largely to strong House support for a “clean” Lobby Disclosure Act. The measure would have barred agencies from all activities intended to promote public support or opposition to legislation, including such activities as preparing kits, pamphlets, booklets and speeches and would have required government officials who violate the anti-lobbying rules to reimburse the government. Chairman Clinger had introduced the amendment to respond to increasing incidences of lobbying by Executive Branch employees, including efforts by the EPA to generate grassroots opposition to the Clean Water Act Amendments of 1995, among other initiatives. Even though his amendment failed to be approved by the House, Clinger hasn’t given up his battle to curb such government abuses: He plans to introduce his reform measure as a free standing bill next year.
As Congress Mulls Future ANWR, New Poll Shows Majority of Americans Support Oil and Gas Leasing. As budget negotiators continued to debate a provision that would permit oil and gas leasing in a small portion of the Arctic National Wildlife Refuge (ANWR), a new poll was released showing that a majority of the American people support such development. According to the poll, conducted by the Gordon S. Black Corporation, 56% of the American people support some oil and gas leasing in the Coastal Plain of ANWR, while only 37% oppose it. The poll also found that, given a choice between meeting the financial needs of Alaska’s Eskimos and giving in to the preservationist demands of professional environmentalists, the public sided with the Eskimos 64% to 24%. Further, a full 89% of those surveyed said they believed the U.S. must develop domestic oil resources and 75% believe local interests should be the primary considerations in development plans. Interestingly, only 31% of the public — according to the poll — believes that national environmental groups should have influence over resource development issues such as ANWR. The Gordon S. Black Corporation is an independent pollster with membership in the Council of American Survey Research Organizations and the National Council of Public Polls. The poll was conducted November 20-21 and included 1,004 randomly-selected subjects. It has a margin of error of +/- 2.5%.
Measure to Make Controversial Provision of 1990 Clean Air Act Voluntary to be Taken Up in December 12 “Corrections Day.” A bill authored by Representative Donald Manzullo (R-IL) that would make the employee trip reduction program — a controversial provision of the 1990 Clean Air Act that requires businesses to reduce the number of cars employees use to commute to work — optional, is headed to the House floor for a vote during the next “Corrections Day,” to be held December 12. The bill, H.R. 325, received the unanimous endorsement of the House Commerce Committee on November 29 after an amendment offered by Representative Henry Waxman (D-CA) was approved. The bill is expected to have wide bi-partisan support — including the support of Representative Waxman.
Small Business Committee Examines 8(a) Abuses. The House Committee on Small Business, chaired by Rep. Jan Meyers (R-KS), has scheduled a December 12 hearing to review a September 7 General Accounting Office report critical of the Small Business Administration’s 8(a) program. 8(a) is a program designed to promote businesses owned by disadvantaged individuals by setting aside $4 billion in federal contracts exclusively for these firms. The GAO report, prepared at the request of Senator Sam Nunn (D-GA), found numerous problems, and has contributed to ongoing charges by some in Congress that 8(a) is a program “run amuck.” The GAO has repeatedly concluded that 8(a) has problems achieving its objectives. In March and April 1995, for example, the GAO cited as a particular problem the fact that a tiny number of 8(a) participants receive a sharply disproportionate amount of benefit from 8(a) programs, and cited 1990 as an example. In 1990, 2% of all 8(a) program participants received 40% of program benefits.
February 15, 1996
All Quiet on the Regulatory Reform Front? Not Exactly. House Republicans are working on a regulatory reform bill that could attract broad-based, bi-partisan support — possibly even enough support to override a presidential veto. While still in its formative stages, the bill (the Small Business Relief and Accountability Act) may include variations of Senator Don Nickles’ Regulatory Review Act (S. 219), a measure establishing a 45-day congressional review period for all significant agency rulemakings that was approved by the Senate last year in a 100-0 vote; Representative David McIntosh’s Regulatory Sunset and Review Act (H.R. 994); and the Regulatory Flexibility Act (H.R. 926). It may also include language for comparative risk assessment. The bill could be considered on the House floor as early as the first or second week of March.
February 29, 1996
Small Business Growth and Administrative Accountability Act of 1996 Slated for House Floor Action March 5. The Small Business Growth and Administrative Accountability Act is scheduled to go to the House floor on Tuesday, March 5 under an open rule. The bill, labeled a modest down payment on the comprehensive regulatory reform needed to end economic stagnation and create jobs — will include three key provisions: Title I: Strengthening Regulatory Flexibility. This provision would strengthen the Regulatory Flexibility Act by allowing small businesses to challenge certain agency actions or inactions in court. Title II: Administrative Review. This provision, among other things, would require federal agencies to periodically review major rules to determine whether they should be continued, modified, consolidated with other rules or terminated. The provision would also establish a petition process that will permit the public and appropriate congressional committees to request review of less economically-costly regulations. Title III: Congressional Review. This provision would allow Congress to review major rules to determine whether they should be “vetoed” before being permitted to take effect. Prospects for approval of the bill in both houses appears good: Title I passed the House last March, 415-15. Title II was approved by the House Government Reform and Oversight Committee in July in a 39-7 vote, approved by the Senate (as an amendment to S. 343) in a 96-0 vote and was one of the recommendations of the White House Conference on Small Business. Title III passed the Senate last March, 100-0 and passed the House in November (as part of the Debt Limit Bill), 257-165.
House Democratic Environmental Task Force Holds Kangaroo Court. The House Democratic Environmental Task Force held a hearing on February 26, featuring such witnesses as Secretary of Interior Bruce Babbitt and EPA Administrator Carol Browner. Excluded from testifying were regulatory takings victims and representatives of small business and industry. As one might suspect, Secretary Babbitt and Administrator Browner lamented the budget impasse, arguing that it had jeopardized enforcement of vital environmental laws. “The environmental cop is absolutely not on the beat.” In response, Representative Don Young (R-AK) suggested that the hearing was a “media event pure and simple.” He added, “It appears as if Secretary Babbitt is only interested in appearing before Democratic members who he knows will affectionately and unquestionably accept his political rhetoric as fact.” In a manner befitting a kangaroo court, Bob Adams of The National Center for Public Policy Research attended the hearing in a kangaroo costume. Though democratic staffers weren’t pleased, a CNN camera crew seemed amused.
March 12, 1996
Experience With Small Business Growth Bill Shows It’s Hard to Take the Offensive While in Full Retreat. The Small Business Growth and Administrative Accountability Act (H.R. 994) sponsored by Representatives Henry Hyde (R-IL), William Clinger (R-PA) and David McIntosh (R-IN) was withdrawn from House floor consideration on March 5, the very day it was introduced, after the White House issued a veto threat. The bill included three key provisions: Title I: Strengthening Regulatory Flexibility. This provision would strengthen the Regulatory Flexibility Act by allowing small businesses to challenge certain agency actions or inactions in court. Title II: Administrative Review. This provision, among other things, would require federal agencies to periodically review major rules to determine whether they should be continued, modified, or consolidated with other rules or terminated. The provision would also establish a petition process that will permit the public and appropriate congressional committees to request review of less economically-costly regulations. Title III: Congressional Review. This provision would allow Congress to review major rules to determine whether they should be “vetoed” before being permitted to take effect. The White House was most concerned about Title II of the measure, which, it argued, would bog down the agencies and divert already limited resources away from vital enforcement functions. But the provision would have required agencies to do no more than President Clinton has already ordered them to do — a top-to-bottom review of all major rules. The key difference between the President’s order and H.R. 994 is that the House measure would have added much-needed teeth to the President’s order, permitting the courts to get involved if agencies failed to follow through with their reviews. The GOP’s retreat on the Small Business Growth and Administrative Accountability Act demonstrates the difficulty in launching an offensive on regulatory issues while the party is in full-scale retreat on these issues. The GOP lost momentum on environmental and regulatory issues last June and has been running from them ever since. One observer noted, “The Republican guard on Capitol Hill rivals even the Iraqi Republican Guard when it comes to surrender. If they were going to be so quick to capitulate, they never should have picked a fight in the first place.” House Speaker Newt Gingrich (R-GA) reportedly made the call to withdraw the bill and has tasked Representatives David McIntosh (R-IN) and Sherwood Boehlert (R-NY), who led the opposition to the Clean Water Act Amendments, to craft a compromise bill. Meanwhile, the measure will be taken up in Senate where the prospects for a vote on it appear to be better.
Bond, Nickles to Take Up “Number One Priority” of Small Business. Senators Kit Bond (R-MO) and Don Nickles (R-OK) will hold a press conference Wednesday, March 13 to discuss the issue voted the number one priority of small business at last year’s White House Conference on Small Business — clarifying the definition of an independent contractor. Senators Nickles and Bond are introducing a bill to correct ambiguity in the IRS’s definition of an independent contractor. “This legislation will allow small business owners to understand the law and let them operate as independent contractors or hire them without fearing the IRS. The effect will be to encourage entrepreneurship, enhance job creation and increase economic activity,” said Senator Nickles.
Ewing Offers Separate Reg Flex Reform Bill. Representative Tom Ewing (R-IL) has introduced H.R. 3048, stand alone legislation to provide judicial review of the Regulatory Flexibility Act (RFA). “Because judicial review of the RFA has garnered so much bipartisan support in both the Congress and the administration, I believe the time has come for the House and Senate to separate RFA judicial review from other more controversial regulatory reform proposals,” said Representative Ewing. “If we do this, our small business constituents will begin to see the benefits of more rational regulations immediately while we continue to work for broader reforms.”
Clinger, Stevens to Introduce Measure to Curb Lobbying by Government Employees. Representative Bill Clinger (R-PA) and Senator Ted Stevens (R-AK) will hold a press conference Wednesday, March 13 at 10:30 A.M. in 2154 Rayburn House Office Building to announce their joint legislative effort to curb lobbying by executive branch employees. “Too many federal agencies have been using public funds to produce propaganda and lobbying material… I cannot permit the misuse of taxpayer dollars for lobbying to continue.”
March 25, 1996
Representative Tate to Hold Field Hearing on Regulatory Excess — “Reg Victims” Sought for Testimony. Representative Randy Tate (R-WA) will host a field hearing for the House Government Reform Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs in Washington’s 9th Congressional District on April 2. The hearing will address federal regulations and their impact on small businesses. “Every day, America’s mom and pop grocery stores, family restaurants and corner drug stores are threatened with extinction through government regulation. The federal attack dogs must be called off,” said Representative Tate.
Debate on Omnibus Property Rights Act (S. 605) Slated to Begin March 27. The Omnibus Property Rights Act, S. 605, is scheduled for debate on the Senate floor as early as Wednesday, March 27. If approved, S. 605 would, among other things: 1.) Require that landowners be compensated for their losses when — as the result of government action — the value of their property is diminished in value by 33% or more; 2.) bar federal officials from entering privately-owned land for data collection purposes without the consent of the owner; 3.) establish an administrative appeals process for decisions under the Endangered Species Act and wetlands designations (under section 404 of the Clean Water Act); and 4.) permit private property owners to file claims against federal agencies in the U.S. District Court or the U.S. Court of Federal Claims when appropriate.
Representative Pombo to Co-Chair Speaker’s Environmental Panel. Representative Richard Pombo (R-CA) was named by House Speaker Newt Gingrich on March 21 to serve as Co-Chairman of the Speaker’s Environmental Task Force. The addition of Representative Pombo will add much-needed balance to the Task Force as Representative Sherwood Boehlert (R-NY), who fought most the of GOP’s regulatory reform agenda, was selected as the other Co-Chairman of the Task Force late last year. “I look forward to working with the Speaker and all members in advancing the Republican Party’s environmental agenda,” said Pombo. “Shifting management from federal control to an expanded role for the states, creating incentives for stakeholders, and property rights protection are three common sense basics.”
Corporations Seeking Reg Relief Bankroll Opposition. Some corporate representatives who have been looking to pin the blame on someone for the stalled regulatory relief legislation may want to take a good hard look in the mirror. It seems that many of America’s large corporations — most notably, those involved in extractive industries — are big donors to the environmental movement. That’s the finding of Environmental Action, an environmental group that does not accept donations from “any corporations which do not demonstrate responsible corporate citizenship.” Among the corporations that gave money to leading green groups are: Chevron U.S.A., Exxon Corporation, Occidental Petroleum Corporation, Sunoco, Texaco, Amoco Foundation, DuPont, Dow Chemical, The Society of the Plastics Industry, American Plastics Council, Shell Oil Company Foundation, Phillips Petroleum, BP America, Ashland Oil, Mobil Foundation, Hoechst-Celanese Foundation, ARCO, and Monsanto. Apparently, environmental groups believe that what these “corporate polluters” lack in green policies they have more than made up for with greenbacks.
Corporate Hall of Shame
Environmental Group and Corresponding Corporate Donors
April 10, 1996
Another Reason for Defense Downsizing? This week’s “Corporate Hall of Shame” includes several defense contractors — including the Boeing Company — perhaps pointing to a need for continued, though more targeted Defense Department downsizing. The Relief Report‘s “Hall of Shame” includes those corporations that give to opponents of regulatory reform. The information comes from the Winter 1996 issue of Environmental Action published by the Environmental Action Foundation.
Corporate Hall of Shame
Environmental Group and Corresponding Corporate Donors
Friends of the Earth : Apple Computer
Izaak Walton League : AT&T Foundation
National Audubon Society: Boeing, Martin Marietta Corporation Foundation
National Parks and Recreation Association : IBM, Microsoft, TDK Electronics, Boeing
National Wildlife Federation: IBM, Microsoft, Boeing
Sierra Club : IBM, Microsoft
World Resources Institute: AT&T, Eastman Kodak Company, Boeing
World Wildlife Fund : AT&T, IBM, MCI Telecommunications, Microsoft, Boeing
April 27, 1996
DOT Regulations: A Highway of Overregulation. The U.S. Department of Transportation’s hazardous materials regulations may well qualify as the most complex, broad, and in many cases unnecessary regulations in the whole panoply of federal regulation. For example, any business that ships any quantity of relatively benign materials like spray paint or nail polish remover is required to carry complicated shipping papers, mark containers, provide DOT- mandated training to employees every two years and retain records for a least one year. House Majority Whip Tom DeLay (R-TX) and Representative Gary Condit (D-CA) filed H.R. 3153 on March 22 to exempt small vehicles carrying relatively small quantities of hazardous materials from DOT’s HazMAT regulations. The bill, which has been referred to the Transportation and Infrastructure Committee, now has some 50 cosponsors.
May 9, 1996
Senate Vote on Property Rights Bill Possible by May 15. Senator Dole’s Omnibus Property Rights Act, S. 605, could be voted on as early as Wednesday, May 15. Among other things, S. 605 would require that landowners be compensated for their losses when — as a result of government action — the value of their property is diminished in value by 33% or more. Although the bill is believed to have more than enough support in the Senate to pass in a straight up or down vote, it does not appear to have the support of 60 Senators — the number needed to overcome an anticipated filibuster. The following Senators are believed to be “swing” votes on the measure: Akaka (D-HI); Baucus (D-MT); Breaux (D-LA); Campbell (R-CO); Conrad (D-ND); Ford (D-KY); Gregg (R-NH); Harkin (D-IA); Johnston (D-LA); Kassebaum (R-KS); Moseley Braun (D-IL); Nunn (D-GA); Pryor (D-AR); Robb (D-VA); Roth (R-DE); Santorum (R-PA); Smith (R-NH); and Specter (R-PA). Perhaps the most surprising member of this “swing” list is conservative Robert Smith of New Hampshire — a Senator not normally known for supporting the trampling of constitutional rights.
The Problem With Speaker “Greenrich.” First, Newt Gingrich co-sponsored legislation to create a National Institute on the Environment — an agency that would inevitably devolve into yet another government-funded body requiring the “discovery” of new environmental risks — both real and imagined — to justify its existence. Then he set-up a House task force on the environment and appointed Representative Sherwood Boehlert — the leader of the opposition to the Clean Water Act Amendments — to co-chair it. Then the Speaker gave “environmental establishment Republicans” equal representation on the task force even though they are a tiny minority within the Republican caucus. Now, Newt Gingrich is apparently going out of his way to insult key GOP constituencies — and key GOP leaders — who simply want to put people back into the environmental equation. In a recent interview with the environmental newswire Greenwire, for example, the House Speaker portrayed westerners as environmentally-backward. Speaking on Representative Richard Pombo’s efforts to reform the Endangered Species Act, Gingrich said: “I have to say on Pombo’s behalf that he has been one of the most patient and open to growth of any of the House subcommittee chairs. As we have met with world-class biologists and botanists… Rick has really tried to bridge the world of the rural Westerner to the world of the scientist who deals with this.” With Republicans already under fire from Democrats for being “environmental neanderthals,” the last thing they need is fire from their own camp — much less from their own Speaker.
Ambiguity in Heritage Areas Bill Recipe for Abuse. An ambiguity in the National Heritage Areas Act of 1996 (H.R. 3305) would place extraordinary discretionary powers in the hands of the Secretary of the Interior that would increase the likelihood of abuse, according to an analysis written by James Burling of the Pacific Legal Foundation and distributed by Liberty Matters. According to Burling, under Section 103(b)(1)(D) of the Act, the Secretary could require reimbursement of all federal funds used for Heritage projects or the “proportion of the increased value of the project attributable to the funds” if the Secretary determines that the funds were used for “purposes contrary to the act.” Since the Act does not define “projects,” the determination of “contrary purposes” is left solely to the discretion of the Secretary. Further, because the Act would allow the federal government to seek reimbursement for the value added to a project by federal funds, a community could be forced to pay back more than it received.
May 24, 1996
Measure Recognizes That Congress Should Make Laws, Not Unelected Bureaucrats. Freshman Representative J.D. Hayworth (R-AZ) has introduced a bill to return the power — and the responsibility — for legislating to Congress. The measure, the Congressional Responsibility Act (H.R. 2727), would require Congress to approve all regulations promulgated by federal agencies before they are allowed to take effect. Unlike a regulatory review measure signed into law by the President as part of the debt ceiling extension bill, H.R. 2727 doesn’t just give Congress the option of rescinding agency rules that run counter to congressional intent, but requires Congress to go on record either for or against each individual regulation. “Americans are disillusioned with government. They believe… that Congress… has grown increasingly unresponsive and unaccountable. They are right,” said Representative Hayworth. “Congress routinely delegates its lawmaking duties to politically-unaccountable bureaucrats who craft regulation… Delegation… permits Congress to grant favors without imposing costs and to exercise selective powers without taking responsibility for its consequences.”
June 6, 1996
“Community Renewal” Bill Offers Regulatory Relief for Economically-Distressed Communities. Representatives J.C. Watts (R-OK) and Jim Talent (R-MO) have introduced “Saving Our Children: The American Community Renewal Act of 1996 (H.R. 3467),” which would exempt 100 communities in America from excessive and unnecessary regulations. Ten percent of these communities must be rural. To qualify, a community must have their state or local government certify in writing that they will repeal or not enforce a series of local regulations including zoning restrictions on home-based businesses, permit requirements for street vendors, and franchise or other restrictions on competition for businesses providing public services. Local regulations affecting public health and safety would not be affected by the bill’s provisions. Other aspects of the legislation include a zero tax on capital gains if the asset is held more than five years, a commercial revitalization tax credit, a work opportunity tax credit for hiring high-risk employees, and a tax rate or fees reduction in the 100 communities.
Representatives Hansen and Hefley Continue to Push Anti-Property Rights Measure — Through Devious Means. Representatives Jim Hansen (R-UT) and Joel Hefley (R-CO) are attempting to sneak the National Heritage Areas Act (H.R. 3305) through the House Resources Committee by attaching it to the livestock grazing bill, H.R. 1713. Hansen’s staff has reportedly tried to convince the National Cattlemen’s Association, the Public Lands Council and the American Farm Bureau Federation that attaching the Heritage Areas bill to the Public Rangeland Management Act is the only way to get the grazing bill through the House. Heritage Areas, pushed for years by past Democrat-controlled Congresses, are not only multi-million dollar taxpayer boondoggles, but a significant threat to private property rights. Under H.R. 3305, the Interior Department would be granted new powers to restrict rights of property owners to preserve “national heritage corridors.”
July 10, 1996
Bill Would Require Regulations Come With An “English Translation.” Despite making good faith efforts to comply with all federal regulations, some small business owners nevertheless find themselves in violation of the law because regulations are too often ambiguous or confusing. As early as next week, the House Judiciary Committee could mark-up a bill to help rectify the situation by essentially requiring that regulations come with an English translation. The bill is the “Regulatory Fair Warning Act” (H.R. 3307) and it is sponsored by Representative George W. Gekas (R-PA). If approved, the measure would discourage federal agencies from imposing punitive sanctions for regulatory violations if 1.) the public was not given adequate notice of the regulation’s requirements or 2.) the requirements of the regulation were unclear. “Adoption of this legislation will encourage agencies to keep the regulated public aware of what their regulations require of them,” said Representative Gekas. “This is a moderate measure, meant to provide a minimum of security and predictability to the regulated community and to improve the relationship between agencies and private citizens.”
Senator Bond Brands President Clinton “No Friend of Small Business.” The Senate passed a 90 cent per hour minimum wage hike on July 9 in a 74-24 vote. Twenty-seven Republicans joined 47 Democrats in voting for the massive regulatory mandate, including Senators Spencer Abraham (R-MI), Rod Grams (R-MN), Strom Thurmond (R-SC), and Frank Murkowski (R-AK) — Senators not normally known for being anti-small business. Before final passage, Senator Kit Bond (R-MO) offered an amendment exempting very small businesses from the mandate. The amendment failed with Republicans Ben Campbell (CO), James Jeffords (VT), Arlen Specter (PA), Alfonse D’Amato (NY) and Mark Hatfield (OR) joining the chamber’s Democrats in opposing the measure. “The defeat of my amendment was orchestrated and led by the President,” said Senator Bond. “Make no mistake about it, a vote against my amendment is a vote to kill jobs, because that is exactly what will happen in the small business sector when this new mandate goes into effect. I have to conclude by his actions that Bill Clinton is no friend of small business.”
Property Rights Bill in Jeopardy, Group Says. The American Land Rights Association (ALRA) says the Omnibus Property Rights Act (S. 605) is in danger because Senate leaders have been advised that it is politically risky. To the contrary, the ALRA argues that property rights can be a winning issue for those who support S. 605. As evidence, the group cites a quote from Democrat pollster Celinda Lake: “If one ever lets the Republicans convince voters that either Democrats or the environmental groups are anti-private property, then I think it could be a very dangerous issue,” said Lake. ” I think it’s one of the most serious issues the environmentalists should worry about because it is such a core value to the people.” The ALRA is urging an “all out call to action,” including calls to Senate Majority Leader Trent Lott’s office and other Senate offices.
August 2, 1996
Waffles Delivered to Lott for Waffling on Private Property Rights Bill. Thirty boxes of waffles were delivered to Senator Majority Leader Trent Lott’s office on July 30 with many more on the way by mail courtesy of the American Land Rights Association (ALRA). “Because one good waffle deserves another, we’re urging thousands of grassroots property rights activists to send waffles to the Senate Majority Leader,” said ALRA Chairman Chuck Cushman. The ALRA has called on grassroots activists to send boxes, packages and even individual waffles to Senator Lott to protest his waffling on the Omnibus Property Rights Act (S. 1954). The bill was supposed to be considered by the full Senate on July 25 but was taken off the Senate calendar by Lott to appease several Republican Senators who want the vote put off until after the elections. One of these Senators is said to be Senator Bob Smith (R-NH) who is facing a tough re-election bid. Senator Lott’s decision to take these Senators’ advice is puzzling given that the most recent poll on property rights — taken by The Polling Company for the Competitive Enterprise Institute — found that 64% of the public supports compensation to property owners when environmental regulations prevent them from using their property. The ALRA believes that a vote on S. 1954 — which would provide compensation to landowners when the value of their property is diminished by 50% or more — is crucial to establish a record of who is for and who is against private property rights. “A vote is important not only because it establishes a record of who is for property owners and who is against them, but because it would establish that Trent Lott is a man of his word,” said Cushman.
House and Senate Approve Delaney Clause “Mission Creep” Bill. Last week, the House and Senate unanimously approved the “Food Quality Protection Act” (H.R. 1627/S. 1116), a measure that replaces the Delaney Clause’s antiquated zero risk cancer standard with a unified safety standard for raw and processed food. Though widely hailed as a major step toward regulatory common sense, the Food Quality Protection Act could ultimately prove more troublesome than the Delaney Clause because it permits EPA “mission creep.” Under the provisions of the Act, a pesticide would be banned unless there is “reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.” Since the Delaney Clause only deals with cancer risks from pesticides, this language would permit EPA “mission creep,” allowing the agency to choose from an infinite number of risks to rationalize banning a pesticide. Worse yet, H.R. 1627/S. 1116 would permit the EPA to determine what is meant by “reasonable,” what constitutes “certainty,” what is meant by “aggregate exposure” and what constitutes “no harm.” Further, none of these determinations would be peer reviewed.
Senate Seeks to Sneak Through Trash Tax By Regulation. By unanimous consent, the Senate inserted language in the 1997 Energy and Water Appropriations bill that would impose flow control requirements for solid waste disposal. Flow control requirements permit regional authorities to set up government-run waste disposal monopolies. Because these monopolies raise the costs of waste disposal by an average of 40%, they amount to a hidden tax on consumers. A similar measure was defeated in the House earlier this year by a 2 to 1 margin. House conferees on the Energy and Water Appropriations bill (H.R. 3816) will have to reject the Senate language, however, to prevent the costly measure from going to the president’s desk. Regulatory relief advocates have been urging grassroots activists to contact the conferees to remind them that these onerous regulations are opposed by a broad-based coalition of environmental, free market and business groups.
David Ridenour is vice president of The National Center for Public Policy Research. He can be reached at [email protected].