[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.

                          ____________________