[Congressional Record Volume 141, Number 14 (Tuesday, January 24, 1995)]
[Senate]
[Pages S1408-S1412]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      UNFUNDED MANDATE REFORM ACT

  The Senate continued with the consideration of the bill.
                  Amendment Nos. 209 and 210, En Bloc

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the 
pending amendment be laid aside so that I may send to the desk two 
amendments, which I will send en bloc. Discussion on these will occur 
at a later time.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The assistant legislative clerk read as follows:

       The Senator from Idaho [Mr. Kempthorne] proposes amendments 
     numbered 209 and 210, en bloc.

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the 
reading of the amendments be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments are as follows:


                           Amendment No. 209

  (Purpose: To provide an exemption for legislation that reauthorizes 
  appropriations and does not cause a net increase in direct costs of 
           mandates to State, local, and tribal governments)
       On page 26, after line 5, insert the following new 
     subsection:
       ``(  ) Limitation on Application.--This section shall not 
     apply to any bill, joint resolution, amendment, motion, or 
     conference report that reauthorizes appropriations, or that 
     amends existing authorizations of appropriations, to carry 
     out any statute if adoption of the bill, joint resolution, 
     amendment, motion, or conference report--
       ``(1) would not result in a net increase in the aggregate 
     amount of direct costs of Federal intergovernmental mandates; 
     and
       ``(2)(A) would not result in a net reduction or elimination 
     of authorization of appropriations for Federal financial 
     assistance that would be provided to States, local 
     governments, or tribal governments for use to comply with any 
     Federal intergovernmental mandate; or
       ``(B) in the case of any net reduction or elimination of 
     authorizations of appropriations for such Federal financial 
     assistance that would result from such enactment, would 
     reduce the duties imposed by the Federal intergovernmental 
     mandate by a corresponding amount.''
                                                                    ____

                           Amendment No. 210

    (Purpose: To make technical corrections, and for other purposes)

  (The text of the amendment is located in today's Record under 
``Amendments Submitted.'')
  Mr. KEMPTHORNE. Mr. President, we will discuss those two amendments 
or call them up at a later time.


                           Amendment No. 211

    (Purpose: To make technical corrections, and for other purposes)

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent to send to the 
desk an amendment by Mr. Kempthorne for Mr. Dole.
  The PRESIDING OFFICER. Without objection, the pending amendment will 
be set aside and the clerk will report.
  The assistant legislative clerk read as follows:

       [[Page S1409]] The Senator from Idaho [Mr. Kempthorne], for 
     Mr. Dole, proposes an amendment numbered 211.

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is located in today's Record under 
``Amendments Submitted.'')
  Mr. KEMPTHORNE. Again, Mr. President, I ask unanimous consent that 
these now be laid aside and we bring the pending amendment back before 
us so we can discuss these at a later time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GLENN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 212

 (Purpose: To clarify the baseline for determining the direct costs of 
reauthorized or revised mandates, to clarify that laws and regulations 
that establish an enforceable duty may be considered mandates, and for 
                            other purposes)

  Mr. GLENN. Mr. President, I am sending an amendment to the desk. 
Because the amendment makes changes at more than one place in the bill, 
I ask unanimous consent that consideration of this amendment shall be 
in order.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Without objection, the pending amendment is set aside.
  The clerk will report the amendment.
  Mr. GLENN. I thank the Chair.
  The assistant legislative clerk read as follows:

       The Senator from Ohio [Mr. Glenn] proposes an amendment 
     numbered 212.

  Mr. GLENN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 5, line 19, strike ``impose'' and insert 
     ``establish''.
       On page 7, line 11, strike ``impose'' and insert 
     ``establish''.
       On page 8, line 5, before ``amounts'' insert ``new or 
     additional''.
       On page 8, line 15, before ``amounts'' insert ``new or 
     additional''.
       On page 9, line 7, strike ``or''.
       On page 9, between lines 7 and 8, insert the following:
       ``(II) to comply with or carry out the terms and 
     requirements of any Federal law or regulation (whether 
     expired or still in effect) that is to be reauthorized, 
     reenacted, replaced or revised by the same bill or joint 
     resolution or proposed or final Federal regulation containing 
     the relevant mandate, calculated as though such terms and 
     requirements were retained and extended without change; or''.
       On page 9, line 8, strike ``(II)'' and insert ``(III)''.
       On page 9, line 22, strike ``or''.
       On page 10, line 4, strike ``and'' and insert ``or''.
       On page 10, between lines 4 and 5, insert the following:
       ``(III) any reduction in the duties or responsibilities of 
     States, local governments, and tribal governments, or the 
     private sector from levels that would be required under the 
     terms and requirements of any Federal law or regulation 
     (whether expired or still in effect) that is to be 
     reauthorized, reenacted, replaced, or revised by the same 
     bill or joint resolution or proposed or final Federal 
     regulation containing the relevant mandate, calculated as 
     though such terms and requirements were retained and extended 
     without change; and''
       On page 10, between lines 14 and 15, insert the following:
       ``For purposes of determining amounts not included in 
     direct costs pursuant to subparagraph (C)(i) and amounts of 
     direct savings pursuant to subparagraph (C)(ii), the amounts 
     that would be needed to comply with or carry out the terms 
     and requirements established by Federal legislation 
     introduced before January 1, 1996, or by Federal regulations 
     adopted before such date shall be calculated without regard 
     to any sunset, expiration, or need for reauthorization 
     applicable to such terms and requirements. Notwithstanding 
     the provisions of subparagraphs (C)(i)(II) and (C)(ii)(III), 
     the amounts that would be needed to comply with or carry out 
     the terms and requirements established by Federal legislation 
     introduced on or after January 1, 1996, or by Federal 
     regulations adopted on or after such date shall be calculated 
     with regard to any sunset, expiration, or need for 
     reauthorization applicable to such terms and requirements.

  Mr. GLENN. Mr. President, this amendment clarifies how the provisions 
of S. 1 will treat reauthorizations of existing laws that contain 
mandates. Our understanding all along, with both myself and Senator 
Kempthorne, is that S. 1, as did S. 993 last year, shall apply only to 
future mandates that add new costs, and this amendment clarifies that 
intent. There has been some confusion about that. Basically, the 
amendment does the following. It ensures that reauthorizations which do 
not change existing laws but merely extend them are not covered under 
S. 1. So if a law is simply extended for several years without any 
substantive change, it is not covered under the mandate legislation.
  Second, if a reauthorization amends the mandate and imposes new costs 
on State and local governments and the private sector but in another 
part of that reauthorization bill the costs of existing requirements 
are reduced, then those savings are credited against the new costs 
imposed.
  Third, this language makes clear that in reauthorization bills, it is 
new costs that will be scored and that the baseline of existing costs 
are not part of the CBO or Budget Committee calculations. So direct 
costs are net costs.
  Finally, this amendment covers situations that may occur when an 
existing law expires and there may be a short gap in time before it is 
extended. I believe this amendment is noncontroversial and clarifies 
what has been our intent all along, that S. 1 apply to the new mandates 
imposing costs.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Ashcroft). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. I ask unanimous consent to speak on amendment No. 201 
offered by the Senator from California [Mrs. Boxer].
  The PRESIDING OFFICER. The Senator has that right.


                           Amendment No. 201

  Mr. KYL. Mr. President, I make this statement on behalf of the 
Senator from Wyoming, the chairman of the Immigration Subcommittee of 
the Judiciary Committee, relating to the Boxer amendment which would 
require an advisory commission report on immigration-related unfunded 
Federal mandates.
  Mr. President, I have discussed this amendment No. 201 with Senator 
Simpson, who as I said is chairman of the Immigration Subcommittee. As 
he noted, the issue of the cost of illegal or legal immigrants to State 
and local governments is very complex. As a matter of fact, it is not 
the result of a mandate by the Federal Government but, rather, because 
the Federal Government has failed to carry out its obligations to 
secure our international borders.
  The congressionally established Commission on Immigration Reform is 
examining this issue at the present time. The Subcommittee on 
Immigration will be looking at this issue in its oversight capacity. I 
strongly urge my colleagues to table amendment No. 201, and, if 
necessary, the Congress can deal with it later when some of these 
complexities are resolved.
  Senator Simpson has assured me that the Subcommittee on Immigration 
will hold hearings on various immigration reform proposals, and it is 
clear that this issue will be raised and considered in these hearings.
  I might add, Mr. President, that as a Senator from a border State, 
this is an issue of vital concern to me and to my State.
  Senator Simpson has noted that the Congress has not ignored the costs 
to State and local governments resulting from immigration legislation. 
In the 1986 Immigration Reform and Control Act, Congress included $4 
billion for assistance to States that were impacted by the legalization 
program in that 
[[Page S1410]] legislation. The Congress was responsive and provided 
assistance where immigration legislation was likely to create new costs 
for State and local governments then, and Senator Simpson assures me he 
would support similar assistance in the future.
  To require the advisory commission to provide a report and a plan at 
the same time the Commission on Immigration Reform is examining and 
preparing to report on the same issue would be duplicative and 
unnecessary. So I suggest, Mr. President, that we wait for the findings 
and report of the Commission on Immigration Reform this spring and not 
require this advisory commission to go over the same ground as would be 
called for in amendment No. 201. I urge my colleagues when this 
amendment is considered by the Senate to table it. I would again 
indicate that this is a reflection of the Senator from Wyoming [Mr. 
Simpson].


                           Amendment No. 213

(Purpose: To provide a reporting and review procedure for agencies that 
      receive insufficient funding to carry out a Federal mandate)

  Mr. BYRD addressed the Chair.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. I offer an amendment which I send to the desk. I ask 
unanimous consent that the reading of the amendment be dispensed with 
and that it merely remain at the desk to be called up at a later time, 
thus qualifying the amendment under the agreement previously entered.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report the amendment by number only.
  The legislative clerk read as follows:

       The Senator from West Virginia [Mr. Byrd] proposes an 
     amendment numbered 213.

  Mr. BYRD. Mr. President, I thank the Chair.
  The amendment is as follows:
       On page 23, line 17, strike ``(IV)(aa);'' and insert 
     ``(III)(aa); and''.
       On page 23, strike line 18 through line 6 on page 25 and 
     insert the following:
       ``(III)(aa) provides that if for any fiscal year the 
     responsible Federal agency determines that there are 
     insufficient appropriations to provide for the estimated 
     direct costs of the mandate, the Federal agency shall (not 
     later than 30 days after the beginning of the fiscal year) 
     notify the appropriate authorizing committees of Congress of 
     the determination and submit legislative recommendations for 
     either implementing a less costly mandate or making the 
     mandate ineffective for the fiscal year;
       ``(bb) provides expedited procedures for the consideration 
     of the legislative recommendations referred to in item (aa) 
     by Congress not alter than 30 days after the recommendations 
     are submitted to Congress; and
       ``(cc) provides that such mandate shall be ineffective 
     until such time as Congress has completed action on the 
     recommendations of the responsible Federal agency.

  Mr. WELLSTONE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. Mr. President, I ask unanimous consent the pending 
amendment be temporarily set aside and the Senate resume consideration 
of amendment No. 186, which I offered yesterday.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Amendment No. 186, as modified

  Mr. WELLSTONE. Mr. President, I ask unanimous consent to modify 
amendment 186.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
amendment is so modified.
  Mr. WELLSTONE. Mr. President, I send the modification to the desk.
  The amendment (No. 186), as modified, is as follows:

       Strike all after ``(  ) It'' and insert the following: ``is 
     the sense of the Congress that the Congress should continue 
     its progress at reducing the annual federal deficit and, if 
     the Congress proposes to the States a balanced-budget 
     amendment, should accompany it with financial information on 
     its impact on the budget of each of the States.''
  Mr. WELLSTONE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BURNS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Amendments Nos. 201-203

  Mr. BURNS. Mr. President, I would just like to comment on the 
amendments that have been sent to the desk by the Senator from 
California and the schematic she offered to the rest of the body to 
illustrate what would happen if this piece of legislation were to pass 
without her amendments.
  I have often said, before we can attain success in what we are trying 
to do in bringing down the size of Government, in trying to make it 
more efficient, there are probably three areas of reform: Regulatory 
reform, budget reform, and spending reform.
  There is a very simple bottom line to that. Regulatory reform--
regulations have to be reviewed, as S. 1 does review those, for impact 
on not only the economy but upon the way we do our business with our 
State and local governments.
  Budget reform--inasmuch as we have to get away from, I think, 
baseline budgeting. We have to go back to the old situation of starting 
at ground zero and building a budget, or at least based on previous 
years' expenditures, to bring some kind of honesty and integrity and 
accountability to the American people.
  And in spending reform--I have a feeling inside me that maybe we 
should only spend money on those programs that have been authorized and 
not delve into some things that have not been authorized.
  But let me talk about specifically S. 1. If you look real closely at 
that schematic, it is kind of scary because it has legislation going in 
many directions. To some it would seem very confusing. But basically we 
do all of those things that are on that schematic now--a vast amount of 
it. The problem is in our hearings we take testimony from Governors and 
from mayors and from county commissioners and people who have to 
administer local government, and we only choose that information that 
we agree with. So we vote sometimes not exactly taking into account 
some of the testimony. We only accept that which we agree with and what 
we do not agree with we cast aside when making a decision on unfunded 
mandates.
  I am a former county commissioner. There were three of us. It is 
wonderful to be a county commissioner because there were three of us. 
You are the budgeteers, you are also the appropriators, and you are 
also the spenders. And you also have to make some pretty tough 
decisions because we have to operate in a balanced budget. In fact, we 
have to maintain reserves. Whether it is the bridge fund or the road 
fund or the county welfare or whatever--but we have to make some 
decisions every day when we appropriate and spend and develop programs, 
whether we can afford them and where the money is going to come from. 
And, yes, maintain the reserves for the carryover months that are in 
front of us.
  Montana had an initiative called 105 that froze everything because 
taxpayers got a little cranky up there in 1986 and we could not raise 
the mill levy. We could not deal with it. So basically we go through 
everything that is on that schematic. The problem is we only accept 
that testimony from those Governors, those mayors, those county 
commissioners that we choose to accept.
  Unfunded mandates: Of course, right now the news is the motor voter 
law that has been levied against some States. In Montana we have had a 
motor voter law for a long time. It is not as extensive as the one 
passed by this body. But nonetheless, that is a perfect example of an 
unfunded mandate.
  So do not be scared of this schematic that shows where the whole 
works gets all balled up and nothing happens in Government. If I had my 
way, I would say that after we passed legislation, if you want to look 
at regulatory reform, getting way over here on this side of the world, 
maybe, before a final rule is issued on any law that is passed by 
Congress and signed by the President, that rule should come back to the 
committee of jurisdiction to make sure that rule does what the intent 
of the legislation was. We see a lot of legislation that is passed and 
then once it hits the street it looks nothing like the intent of the 
legislation.
  So, yes. It is slower. There is nothing wrong with that. I would 
agree with 
[[Page S1411]] the Senator from California. If we are going to do it, 
let us do it right. I agree with that. If it takes a little longer, 
then so be it because I think this is a piece of landmark legislation 
that is going to maybe bond the relationship between the Federal 
Government and its duties, its requirements, and the actions that we 
take with those of local governments which have to administer most 
times that legislation that is passed by this Federal Government.
  If it takes a little longer, do not let the schematic scare you. We 
understand that. If it slows the process down, then so be it.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SARBANES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 214

  Mr. SARBANES. Mr. President, I send an amendment to the desk in 
behalf of Mr. D'Amato and myself, and I ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Maryland [Mr. Sarbanes], for Mr. D'Amato, 
     for himself and Mr. Sarbanes, proposes an amendment numbered 
     214.

       On page 12, line 3, strike the period after ``Code'' and 
     insert ``, or the Office of the Comptroller of the Currency 
     or the Office of Thrift Supervision.''.

  Mr. SARBANES. Mr. President, I rise to offer this amendment on behalf 
of Senator D'Amato and myself. The amendment makes what we consider to 
be a technical but important change to S. 1.
  Section 3 of S. 1 exempts independent regulatory agencies as defined 
in the United States Code from the regulatory impact analysis and 
reporting requirements of title II of the bill. The effect of this 
provision already in the bill is to exempt from title II three of the 
five Federal agencies which regulate federally insured deposit 
institutions, in effect the Federal Reserve, the FDIC, and the National 
Credit Union Administration. However, the provision does not, as 
currently written, exempt two of the other Federal agencies which 
regulate Federal deposit insurance institutions, the Comptroller of the 
Currency, the OCC, and the Office of Thrift Supervision, the OTS. The 
OCC regulates nationally chartered banks and the OTC regulates savings 
and loan institutions.
  The concern is that imposing requirements of title II of section I on 
Federal financial institution regulatory agencies could delay the 
prompt issuance of safety and soundness rules that affect federally 
insured financial institutions.
  It is my understanding it was not the intent of the sponsors of the 
legislation to draw a distinction among the Federal agencies which 
supervise federally insured deposit institutions. In fact, it is not 
logical since these agencies carry out essentially similar functions 
and should be treated similarly for the purposes of this legislation.
  Furthermore, distinguishing amongst the agencies could create 
problems for their operations. For example, the agencies issue many 
regulations jointly in order to assure consistent regulatory standards 
for federally insured institutions.
  The bill, as now written, would interfere and possibly delay the 
issuance of these rulemakings for two of the agencies, while the other 
three are exempt.
  This amendment will simply provide that all five of the regulatory 
agencies which have supervisory responsibilities for federally insured 
depository institutions be treated in the same way by this legislation. 
It would therefore ensure, this amendment would ensure that the 
agencies can act jointly and expeditiously in the public interests to 
ensure the safety and soundness of the federally insured institutions.
  Mr. D'AMATO. Mr. President, I rise today in support of a Banking 
Committee amendment to S. 1, the Unfunded Mandate Reform Act of 1995. 
This amendment is supported by both myself, the chairman, and the 
distinguished ranking minority member, Senator Paul Sarbanes.
  This amendment, Mr. President, would protect the safety and soundness 
of insured depository institutions. Specifically, the amendment would 
amend section 4 of the bill to provide that this bill does not apply to 
any proposed or final Federal regulation that ensures the safe and 
sound operation of an insured bank or thrift or that protects the 
deposit insurance funds.
  S. 1, as introduced, would have an anomalous effect of exempting 
three of the five Federal financial institution regulatory agencies--
the Federal Reserve, the Federal Deposit Insurance Corporation, and the 
National Credit Union Administration. Two others, the Comptroller of 
the Currency and the Office of Thrift Supervision, are not exempted. 
There is no justification for this different treatment. Because the 
FDIC, Federal Reserve, and NCUA are not covered by this legislation, 
this exemption would apply only to regulations issued by the OCC and 
OTS.
  All of these agencies have the same supervisory responsibilities and 
need the same ability to act expeditiously in the public interest. The 
Office of the Comptroller of the Currency and the Office of Thrift 
Supervision, the two agencies that are subject to the bill, supervise 
the institutions that hold most of the assets of the U.S. financial 
system. These two agencies exceed the assets held by the other three 
combined. Treating two of the agencies differently from the others will 
hinder congressional intent to reduce regulatory burden.
  Mr. President, I am concerned that imposing the requirements of S. 1 
on these Federal financial institution regulatory agencies could delay 
the prompt issuance of safety and soundness rules that effect federally 
insured financial institutions and credit unions and their deposit 
insurance funds.
  I strongly urge the adoption of this amendment.
  Mr. ROTH. Mr. President, I rise in support of the amendment of the 
Senator from Maryland to clarify that this legislation is not intended 
to address the role of our banking regulatory agencies. I do so because 
the major purpose of S. 1 is to focus on Federal unfunded 
intergovernmental mandates and to establish a process for treating 
them. In contrast, the banking regulators regulate banks, not 
governments. They impose no direct costs--a defined term under S. 1--on 
State, local, or tribal governments.
  The problem the banking regulators have brought to our attention 
arises from the somewhat indefinite scope of title II of S. 1. 
Originally intended to focus only on agency regulations involving the 
public sector, the title has been extended in certain respects to the 
private sector as well. The result might very well leave banking 
regulators in a situation where they are required to perform analyses 
producing little benefit to either the public or the private sector. In 
fact, the provisions of title II may need to be revisited in the near 
future as a general matter to make sure that its provisions are cost 
effective.
  The banking regulators have requested exemptions from the legislation 
arguing that the Treasury regulators should be accorded the same status 
as independent regulators that are exempt. In my analysis I never need 
reach the question of equal treatment since it appears to me that there 
is little, if any, overlap between the scope of this legislation and 
the domain of any of the banking regulators.
  It is my intention, as chairman of the Committee on Governmental 
Affairs, to move regulatory reform legislation later in this Congress. 
It may be that such legislation, even though general in its scope, 
would more directly address the responsibilities of banking regulators 
to the American people and the institutions they regulate. It seems to 
me entirely appropriate to wait until such legislation is fashioned and 
understood in order to resolve questions how regulatory reform might 
impact banking regulators.
  Mr. SARBANES. Mr. President, I ask that the amendment be agreed to.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to the amendment.
  The amendment (No. 214) was agreed to.
  Mr. SARBANES. Mr. President, I move to reconsider the vote by which 
the amendment was agreed to.
   [[Page S1412]] Mr. GLENN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________