[Congressional Record Volume 141, Number 114 (Friday, July 14, 1995)]
[Senate]
[Pages S9981-S9984]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMPREHENSIVE REGULATORY REFORM ACT
The Senate continued with the consideration of the bill.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. CHAFEE. Mr. President, I would like to ask the managers of the
bill a question. I would like to make about a 5-minute statement. If
you are in the midst of some procedure here, I am reluctant to
interrupt it.
Mr. LEVIN. We are very close, we believe, to working something out on
the Hutchison amendment. That is not quite ready. So I have no
objection, and I do not believe Senator Hatch would either.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. CHAFEE. Mr. President, during consideration of this regulatory
reform bill, we have heard a litany of horror stories about silly
regulations, costly regulations, and useless regulations. Many of these
stories have focused on rules and laws that are designed to protect the
environment.
It must be remembered, however, that tales of environmental excess do
not present the complete story.
I have spoken many times about the tremendous progress we have made
in cleaning up our environment over the past 25 years. I think the last
25 years, starting in about 1970, 1972, those were the glory years of
environmental legislation. As a result of that legislation, our Nation
is far cleaner in its waters and in the air, and far ahead in the
preservation of endangered species than we otherwise would have been.
In just about every instance, that progress can be attributed directly
to environmental rules and regulations and laws that were passed.
Surely, there are examples of overly rigid applications of specific
rules. But there is no doubt that the world is a better place today
precisely because we have stepped in and forced industry to clean up
its act.
In today's Washington Post, on page A3, there is a good news, pro-
environmental success story. It is a story about environmental
``regulation''--that word that everybody seems to rebel against around
here. The headline reads, ``A Threat to Ozone Layer Diminishes.''
Mr. President, I ask unanimous consent that the story from the
Washington Post be printed in the Record.
[[Page S9982]]
There being no objection, the article was ordered to be printed in
the Record, as follows:
A Threat to Ozone Layer Diminishes, Scientists Say
(By Boyce Rensberger)
One of the chief threats to Earth's protective ozone layer
has begun to diminish, an international group of scientists
has found. According to their report in today's issue of the
journal Science, the concentration of methyl chloroform in
the atmosphere peaked in 1990 and has been falling ever
since.
``This represents the first actual decrease in atmospheric
concentration recorded for any halocarbon [the class of
chemicals that attack ozone] restricted under the Montreal
Protocol on Substances that Deplete the Ozone Layer,'' the
researchers wrote.
In a related article in the same issue, other researchers
confirmed a finding, first reported two years ago, that CFCs
have almost stopped increasing in the atmosphere. These
substances pose an even bigger threat to the ozone layer and
are also regulated by the Montreal protocol. The growth rates
of CFC-11 and CFC-12 ``are now close to zero,'' the
scientists said.
If trends continue, the researchers said, CFC
(chlorofluorocarbon) levels in the atmosphere are expected to
peak next year or in 1997 and then begin to decline slowly.
Previous estimates of CFC levels projected a peaking around
the year 2000.
Scientists also said a fourth ozone depleting substance
regulated under the Montreal protocol, carbon tetrachloride,
appears to have begun declining but those data have not yet
been published.
The Montreal protocol is a 1987 international treaty to
phase out production of all major ozone depleting chemicals.
It was amended in 1990 and 1992 to speed up the schedule.
Although the ban on CFCs was not to take effect until 1996,
most manufacturers cut production of the chemicals well in
advance of the deadlines.
``This is good news for the atmosphere,'' said James W.
Elkins, of the National Oceanic and Atmospheric
Administration's Climate Monitoring and Diagnostics
Laboratory in Boulder, Colo. ``We're starting to see the
first real benefits of regulation.''
``The Montreal protocol works,'' said an author of one of
the Science papers, A.R. Ravishankara of NOAA's Aeronomy
Laboratory.
Still, both atmospheric scientists said, the decline in
overall threat to the ozone will be slow and is not expected
to eliminate recurrences of the Antarctic ozone hole until
perhaps 2050. Throughout this period, however, the ozone
layer is expected to thicken because ozone constantly is
being created by the action of sunlight on ordinary oxygen
and, within a year or two, the creation rate will exceed the
destruction rate. The ozone layer helps screen out much of
the sun's ultraviolet radiation, which causes DNA damage
leading to increased rates of skin cancer.
A major concern about the Montreal protocol is whether
Russia, China and India will also stop production of CFCs
when their opportunity to be exempted expires in a few years.
Substitutes for CFCs are more expensive and require costly
changes in refrigerating equipment.
The decline in methyl chloroform (also called
trichloroethane) was reported by Ronald G. Prinn, of the
Massachusetts Institute of Technology, and eight colleagues
at various institutions in this country, Australia and
Britain.
Their report also contains a major correction to the key
method used by atmospheric chemists to estimate the ability
of chemicals to deplete ozone or to cause global warming. As
a result of the correction it is now clear that many
synthetic gases are nearly 20 percent less capable of doing
harm than was estimated previously. The immediate practical
effect of the correction is to lower the ozone depleting
potential, or ODP, of some chemicals below the maximum
tolerated under the Clean Air Act.
The law says that gases cannot be released to the
atmosphere unless their ODP is less than 20 percent that of
CFC-11. Because of the correction, new calculations are
likely to reveal that several synthetic gases once thought
banned are now acceptable.
The correction grew out of new studies by the Prinn group
of the amount of hydroxyl radical, or OH, in the air. Prinn
had thought the concentration was low and slowly rising. It
now turns out that the OH level is higher than thought and
has not risen at least since 1978.
``This is good news,'' Elkins said, ``because OH is a
natural cleanser in the atmosphere. It removes various ozone
depleting substances [including methyl chloroform] and some
`greenhouse' gases.''
Unfortunately, OH does not help break down carbon dioxide,
one of the chief greenhouse gases, or CFCs, the major ozone
depleters.
Mr. CHAFEE. Mr. President, in 1987, under the leadership of our
President--who was President? Ronald Reagan was President in 1987--the
Environmental Protection Agency convinced the rest of the world to sign
onto a treaty known as the Montreal Protocol. That treaty called for a
reduction in the production and use of chemicals that scientist
predicted and stated were destroying the stratospheric ozone layer.
The stratospheric ozone layer is Earth's shield against harmful
ultraviolet radiation. What is the harm with that? Why do we care about
ultraviolet radiation? Well, ultraviolet radiation comes in through
these holes made in the ozone layer as a result of chemicals such as
chlorofluorocarbons. This was first discovered in the mid-1980's, over
Antarctica. Scientists told us that there was a class of ozone-
destroying chemicals, such as methyl chloroform and CFC's, as I
previously mentioned. As a result of the hole in the ozone layer, the
ultraviolet radiation came through without being screened, and that is
the principal cause of skin cancers in our society today.
In 1987, the Montreal Protocol called for a 50-percent reduction in
the production and use of these chemicals by the signatories to the
protocol.
In 1990, under the leadership of another Republican President,
President Bush, the protocol was amended, and Congress passed the Clean
Air Act, and part of that required a complete elimination of these
chemicals.
A number of groups opposed those regulatory efforts. They said it was
unnecessary. They said it could not be done, that it would cost too
much.
What has been the result? As reported in today's newspaper, one of
the chief threats to Earth's protective ozone layer has begun to
diminish. The concentration of CFC's in the atmosphere is just about at
its peak. In other words, when we stop sending up the CFC's, it does
not stop just like that, because those that were released years before
are winding their way up into the stratosphere. But because of the
efforts we took in the mid-1980's, those that we released at the time
have just about completed their journey, and we have cut off the
supply, and the number of CFC's going into the stratosphere is
beginning to diminish. The concentration is just about at its peak and
should start to diminish shortly. The concentration of methyl
chloroform peaked in 1990 and has been falling ever since.
I have here a quote by James Elkins of the National Oceanic and
Atmospheric Administration's Climate Monitoring and Diagnostics
Laboratory in Boulder, CO. ``This is good news for the atmosphere. * *
* We're starting to see the first real benefits of regulation.''
Mr. President, the point of highlighting this good news story is to
show that sometimes we get it right. All environmental laws and
regulations are not the demons some would have us believe. I am certain
that the good news of today would not have been possible if the pending
bill had been in effect at the time of the Montreal Protocol in 1987
and the Clean Air Act Amendments in 1990.
If this law that we are debating today had been in effect at that
time, the first thing we would have spent years doing would be a risk
assessment and a cost-benefit analysis. When all of that was completed,
because of the judicial review provisions in this statute before the
Senate, this act would be on appeal after appeal after appeal. What we
accomplished in 1987 we never would have done.
Mr. President, I wish to draw people's attention to, first, that
regulations do produce some good effect; second, to point out some of
the problems that are incipient in the act before the Senate.
Amendment No. 1539, as Modified
Mrs. HUTCHISON. Mr. President, I ask unanimous consent to modify my
amendment No. 1539. I send the modification to the desk.
The PRESIDING OFFICER. The Senator has that right. Is there
objection? Without objection, it is so ordered.
The amendment (No. 1539), as modified, is as follows:
Insert at the appropriate place:
SECTION 709. AGENCY INTERPRETATIONS IN CIVIL AND CRIMINAL
ACTIONS.
``(a) No civil or criminal penalty shall be imposed by a
court, and no civil administrative penalty shall be imposed
by an agency, for the violation of a rule--
``(1) if the court or agency, as appropriate, finds that
the rule, and other information reasonably available to the
defendant, failed to give the defendant fair warning of the
conduct that the rule prohibits or requires; or
``(2) if the court or agency, as appropriate, finds that
the defendant--
``(A) reasonably in good faith determined, based upon the
language of the rule published in the Federal Register, and
other information reasonably available to the dependent, that
the defendant was in compliance with, exempt from, or
otherwise not subject to, the requirements of the rule; or
[[Page S9983]]
``(B) engaged in the conduct alleged to violate the rule in
reasonable reliance upon a written statement issued by an
appropriate agency official, or by an appropriate official of
a State authority to which had been delegated responsibility
for implementing or ensuring compliance with the rule, after
the disclosure of the material stating that the facts, action
compliance with, or that the defendant was exempt from, or
otherwise not subject to, the requirements of the rule.
In making its determination of facts under this subsection,
the court or agency shall consider all relevant factors,
including, if appropriate: that the defendant sought the
advice in good faith; and that he acted in accord with the
advice he was given.
``(b) In an action brought to impose a civil or criminal
penalty for the violation of a rule, the court, or an agency,
as appropriate, shall not give deference for the propose of
that action only to any interpretation of such rule relied on
by an agency in the action that had not been timely published
in the Federal Register, and was to otherwise personally
available to the defendant or communicated to the defendant
by the method described in paragraph (a)(2) in a timely
manner by the agency, or by a state official described in
paragraph (a)(2)(B), prior to the commencement of the alleged
violation.
``(c) Except as provided in subsection (d), no civil or
criminal penalty shall be imposed by a court and no civil
administrative penalty shall be imposed by an agency based
upon--
``(1) an interpretation of a statute, rule, guidance,
agency statement of policy, or license requirement or
condition, or
``(2) a written determination of fact made by an
appropriate agency official, or state official as described
in paragraph (a)(2)(B), after disclosure of the material
facts at the time and appropriate review,
if such interpretation or determination is materially
different from a prior interpretation or determination made
by the agency or the state official described in (a)(2)(B),
and if such person, having taken into account all information
that was reasonably available at the time of the original
interpretation or determination, reasonably relied in good
faith upon the prior interpretation or determination.
``(d) Nothing in this section shall be construed to
preclude an agency:
``(1) from revising a rule or changing its interpretation
of a rule in accordance with sections 552 and 553 of this
title, and, subject to the provisions of this section,
prospectively enforcing the requirements of such rule as
revised or reinterpreted and imposing or seeking a civil or
criminal penalty for any subsequent violation of such rule as
revised or reinterpreted.
``(2) from making a new determination of fact, and based
upon such determination, prospectively applying a particular
legal requirement.
``(e) This section shall apply to any action for which a
final unappealable judicial order has not been issued prior
to the effective date.
Mr. HATCH. Mr. President, are we prepared to move ahead on this?
Mrs. HUTCHISON. I believe we need a couple of minutes of debate, with
perhaps 3 minutes to Senator Biden and the same for me, if that is
acceptable to everyone.
Mr. LEVIN. One minute.
Mr. HATCH. Mr. President, I ask unanimous consent that we have 6
minutes equally divided between the distinguished Senator from Texas
and the distinguished Senator from Michigan.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Mr. LEVIN. Mr. President, we are willing to have this adopted on a
voice vote. If there is a request for a rollcall, as apparently there
was, of course, that is the right of folks who want a rollcall.
We are prepared to accept this on a voice vote.
Mr. BIDEN. Will the Senator yield a minute?
Mr. LEVIN. I am happy to yield to the Senator.
Mr. BIDEN. I thank the Senator from Texas for her willingness to make
the accommodations she has. Because she has operated under such good
faith, I will vote for this amendment if there is a vote. I want to
make it clear it does not satisfy all of my concerns and objections,
nor, I suspect, do the changes satisfy her.
There is an effective date in here that would make this, in effect,
retroactive. I think that is bad public policy. I think it is also
inconsistent with having a piece of legislation that will take effect
as a whole upon passage but one section of it that looks back and is
retroactive.
I also am still not satisfied, nor, I suspect, is the Senator from
Texas satisfied, with the section allowing, in effect, an individual to
be able to say, ``I acted in good faith,'' and not be subject to
penalties or not be subject to civil or criminal penalties.
There are a few other things I still have problems with. If we ever
get to the point where, in the substitute that the Senator from Ohio is
going to offer to this legislation as a whole, I would attempt to put
in the language more to the liking of the Senator from Delaware, were
that ever to prevail.
Having said that, I sincerely thank the Senator from Texas. This is,
from my perspective, a much improved version and meets the vast
majority of my concerns that I had relative to the amendment. I yield
the floor.
Mr. JOHNSTON. Will the Senator yield?
Mr. LEVIN. I am happy to yield to the Senator.
Mr. JOHNSTON. I thank the Senator from Texas for her cooperation in
working out on my behest a number of amendments.
I believe this is a well-drawn amendment now. It speaks to a much
needed principle of the law, and that is that Federal officials ought
to tell the truth. And we ought to be able to rely on them when they
do. This amendment carries out that policy. I enthusiastically support
it.
Mr. LEVIN. Mr. President, I do not know if I have any time remaining.
The PRESIDING OFFICER. The Senator has 25 seconds.
Mr. LEVIN. That is long enough.
Mr. President, a number of the problems which I saw in this amendment
have been corrected. There still remains a problem with it, but I
intend to vote for this amendment, and I want to thank the Senator from
Texas for introducing it. It is an important point she is making, and
the changes she has made have significantly improved the amendment.
Mrs. HUTCHISON. Mr. President, I appreciate very much the cooperation
I have had with the Senator from Michigan, the Senator from Delaware,
the Senator from Louisiana, and the Senator from Alabama, all of whom
on the other side worked very hard, I think, to improve this amendment.
The purpose of my amendment is to make sure there is fair play in the
system, that our administrative regulatory agencies give notice to
those who are going to rely on it so that they can comply with the
regulations. That is the purpose.
I think, frankly, it is a better amendment now. I think there will be
fair play on both sides.
I think it is very important that we keep the principle of fairness
in this regulatory reform bill. I think we have achieved that with this
amendment.
Mr. President, I ask unanimous consent that Senator Murkowski be
added as an original cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HUTCHISON. Last, I want to thank the Senator from Utah.
I want to say I have never seen a more patient manager of a bill than
the Senator from Utah. This has been a very tough amendment. We have
spent most of the day on it. He has been very accommodating to all of
the differing views on both side, and has listened patiently. For that
reason, I think we have improved this bill.
In the future, there is going to be--I hope--a good working
relationship, rather than an adversarial relationship, between the
regulators and the regulated. That is the purpose of this bill. I think
we have achieved it.
I ask for the support of all of our colleagues for this improved
amendment. I look forward to a strong vote. I yield the floor.
Mr. HATCH. I want to commend the distinguished Senator from Texas. It
corrects some real injustices. She has worked long and hard to
accommodate everybody, and I hope we will all vote for this amendment.
Mrs. HUTCHISON. I yield back the remaining time, and I ask for the
yeas and nays.
Mr. JOHNSTON. Mr. President, I ask the Senator, will this be the last
vote today?
Mr. HATCH. I honestly do not know.
Mr. JOHNSTON. The Senator from Michigan had an amendment ready to go.
I urged him not to bring it up at this time because I hope we can work
it out over the weekend.
[[Page S9984]]
Mr. HATCH. I know the distinguished leaders of both sides prefer to
press onward, but I am not sure what their decision will be. I think we
need to have this vote and go from there.
Mr. LEVIN. Mr. President, we will also be offering the Glenn-Chafee
substitute this afternoon.
Mr. JOHNSTON. That would be voted on Monday.
Mr. LEVIN. That will require some significant debate both Monday and
perhaps today.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. LOTT. I announce that the Senator from Missouri [Mr. Bond], the
Senator from Montana [Mr. Burns], the Senator from Colorado [Mr.
Campbell], the Senator from Maine [Mr. Cohen], the Senator from Texas
[Mr. Gramm], the Senator from Indiana [Mr. Lugar], the Senator from
Arizona [Mr. McCain], the Senator from Alabama [Mr. Shelby], and the
Senator from Maine [Ms. Snowe] are necessarily absent.
Mr. FORD. I announce that the Senator from New Mexico [Mr. Bingaman],
the Senator from California [Mrs. Boxer], the Senator from New Jersey
[Mr. Bradley], the Senator from Arkansas [Mr. Bumpers], the Senator
from Ohio [Mr. Glenn], the Senator from Iowa [Mr. Harkin], the Senator
from South Carolina [Mr. Hollings], the Senator from Massachusetts [Mr.
Kennedy], the Senator from Maryland [Ms. Mikulski], the Senator from
Arkansas [Mr. Pryor], and the Senator from Maryland [Mr. Sarbanes] are
absent on official business.
The PRESIDING OFFICER (Mr. Jeffords). Are there any other Senators in
the Chamber who desire to vote?
The result was announced--yeas 80, nays 0, as follows:
[Rollcall Vote No. 308 Leg.]
YEAS--80
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Breaux
Brown
Bryan
Byrd
Chafee
Coats
Cochran
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Gorton
Graham
Grams
Grassley
Gregg
Hatch
Hatfield
Heflin
Helms
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Mack
McConnell
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Reid
Robb
Rockefeller
Roth
Santorum
Simon
Simpson
Smith
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
NOT VOTING--20
Bingaman
Bond
Boxer
Bradley
Bumpers
Burns
Campbell
Cohen
Glenn
Gramm
Harkin
Hollings
Kennedy
Lugar
McCain
Mikulski
Pryor
Sarbanes
Shelby
Snowe
So, the amendment (No. 1539), as modified, was agreed to.
Mr. DOLE. Mr. President, I move to reconsider the vote.
Mr. HATCH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________