[Congressional Record Volume 142, Number 30 (Thursday, March 7, 1996)]
[Senate]
[Pages S1632-S1633]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           SMALL BUSINESS REGULATORY ENFORCEMENT FAIRNESS ACT

  Mr. BOND. Mr. President, it is with regret, I tell my colleagues 
today, that we are not able to proceed at this time with the Small 
Business Regulatory Enforcement Fairness Act, S. 942, which was marked 
up by the Small Business Committee yesterday. We had hoped to be able 
to go forward on what is a very sound, bipartisan bill that responds to 
the major regulatory reform requests of the delegates to the White 
House Conference on Small Business. At this time, there is an objection 
on the other side of the aisle to calling that measure up for 
consideration today.
  Frankly, I am very disappointed that we are not able to go forward, 
because this is something that we in the Small Business Committee, with 
the help of others in this body who are concerned about small business, 
have worked on for a long time.
  I want to pay a very special thanks to my ranking member, Senator 
Bumpers, and his staff who worked with us and the other members of the 
committee to get what I think is a good bill. It was passed out of the 
committee on a 17 to 0 vote. It was one which I had hoped we would be 
able to move quickly.
  We are coming up very shortly on the 1-year anniversary of the White 
House Conference on Small Business. A number of small businesses do not 
understand how slowly this place moves. Sometimes I do not understand 
how slowly this place moves.
  It would seem to many that the time has come to respond to their 
requests. There are several simple requests.
  One of them is to put some teeth in the measure that is supposed to 
give small businesses an opportunity to be heard in the regulatory 
process. Congress passed, and the President signed about 16 years ago, 
a measure called the Regulatory Flexibility Act. The objective of that 
act was to make sure that Government regulations which affected small 
business took a look at the impact on small businesses and choose a 
means of minimizing the hassle, the redtape, the wasted energy, the 
wasted effort that a regulation might impose on a small entity. I say 
small entity because that is only small business. It has a small 
profit. We have had people from colleges and universities who wring 
their hands and tell us that the same hassles the small businesses face 
affect them. I cannot tell you the number of county and city officials 
in my State who say, I wish we had the ear of some of the regulators in 
Washington because they do not take into account what some of these 
regulations that might be perfectly workable for a large corporation, 
or even a State government, do when it comes down to the local level to 
a small business.

  Well, for years, the White House conference delegates and other small 
business groups have said that if you want to make regulatory 
flexibility work, you have to put some teeth into it. When the reg flex 
bill was passed initially, there was an exclusion of judicial 
enforcement. In other words, you could not go to court and say a 
Federal regulatory agency failed to take into account the impact on 
small business. Well, we have, by a bipartisan effort, a measure which 
provides judicial enforcement for regulatory flexibility. The President 
has called for it, the Administrator of the Small Business 
Administration has called for it, leading Members of both sides of the 
aisle in this body have called for it. We would make regulatory 
flexibility subject to the judicial enforcement. Why? Because, quite 
frankly, right now, when the Small Business Council for Advocacy goes 
to a Federal agency and says, ``You did not take into account how this 
is really going to tie up small business, and you are putting a 
tremendous recordkeeping burden on them, putting them through a 
tremendous hassle,'' too often those agencies say, ``Tough luck.''
  So what are you going to do about it? The answer is nothing. He 
cannot do anything about it. Under this bill, he could do something 
about it. Under this bill, a small entity could do something about it. 
Well, that is what is being held up today. That is what we had hoped to 
bring to the floor this afternoon, to do what the small businesses of 
America have asked us to do, and that is let their voice be heard in 
Washington. Let them have an opportunity to express their concerns and 
their complaints to the agencies that are driving them nuts.
  I might add, parenthetically, that even the Small Business 
Administration itself came out with a bunch of regulations, some of 
them in its loan programs, and others, which we think might make it 
more difficult for small businesses. It would not be a bad idea for the 
Small Business Administration to take a look at how its own regulations 
impact small business. We can give them some help. Well, we cannot do 
it until we have S. 942, or the contents of that bill, passed by both 
Houses and signed by the President.

  This measure also does some other things that are very important. It 
says when you write a regulation, you have to tell, in plain English, 
commonsense language, how an entity can comply with it, what you are 
really getting at in a regulation. We are saying that if you do not do 
that, if a regulatory agency wants to bring an enforcement action 
against a small entity, the small entity can look and say, here are 
your guidelines; or, if you do not have any guidelines, you can publish 
guidelines. Sometimes the simplifying guidelines a Federal agency puts 
out are very thick. For a small business with one, two, or three 
employees, not many of them have the time to read

[[Page S1633]]

through hundreds of pages of directions. That is not simple language. I 
think that is a tool the small businesses need.
  Senator Domenici, as a result of small business hearings we had in 
New Mexico, had a good idea, one that we need to try out, which is 
included in this bill. It would give small businesses an opportunity to 
participate in making the regulations in the first place. Let them be 
heard. Bring them in and let them have a crack at it. Let them have an 
opportunity to say how the goals of the legislation--that is, what the 
regulations are supposed to do to help achieve the goals of 
legislation--how those goals can better be achieved as they affect 
small business. That is also included in it.
  And then we have a final provision that also came from the hearings 
that we held around the country, from Georgia to Alaska, Tennessee, and 
Missouri. We have had hearings in Minnesota, all around the country, 
and we have heard a lot of small businesses say that it is not just the 
regulations; sometimes it is the regulators themselves. Sometimes the 
regulators themselves come in and act like they have been sent by the 
king rather than by a popularly elected Government. They act like they 
represent a monarch, and they tread on the rights of the people who do 
not have the resources to fight them.
  So we would set up an ombudsman, who would be available for a small 
business or a farmer, or other small operators, to raise an objection 
as to how an inspector operates. I asked the small businesses before, 
``Why do you not object if OSHA sends in an inspector who is 
overreaching, who does not listen to your side of the story, who says 
it is his way or the highway? Why do you not just object to the 
agency?'' They say, ``If we object to the agency, that same guy is 
going to come here next month, and instead of fining us $4,000 for not 
having a label on some dish-washing soap, he could increase the fine, 
or it could get even worse.''

  So we set up a means where an affected small business or entity that 
gets stepped on by these enforcers could register a complaint. We set 
up regional regulatory fairness boards to hear these complaints. I 
think it will help the agencies themselves to root out a bad apple, or 
to bring in an inspector, examiner, or representative who is out of 
hand and say, ``We have had complaints about you. You are not helping 
the citizens we are supposed to serve and represent to comply with the 
laws and with the regulations. You need to shape up the way you are 
acting.''
  Well, that ombudsman provision, the regulatory fairness provision, is 
also included in S. 942.
  Finally, equal access for justice. We want to make it easier if you 
are a small business and the Federal Government comes in and says, ``We 
need a million dollars in penalties,'' and you say, ``That would put me 
out of business. It is not a willful violation, and I did not cause 
serious harm. It is the first time I have done it.'' That is totally 
out of whack. If they proceed against you and get a $10,000 fine, then 
you ought to be able to get your attorney's fees from the agency that 
tried to run over you. It makes them accountable. It makes sure that 
the agency comes in with demands that are not out of reason. That, too, 
is in S. 942.
  Unfortunately, at this point, there is an objection on the other 
side. I know that we have very strong support, particularly from the 
members of the Small Business Committee, on both Republican and 
Democratic side. We would like to move this bill. We have time set up 
on the floor. This is valuable time that we are wasting that we are not 
moving forward on this bill. This is the time that we could be doing 
something that would respond to the concerns that the small businesses 
of America have about how the Federal Government acts.

  Unfortunately, as long as there is that objection, it will take us 
some time to bring it up. We will bring it up. I know everybody seemed 
to be ready for it. The people who were involved in crafting it were 
ready to come to the floor.
  I say by way of explanation to our other colleagues that I truly 
regret we cannot pass this measure. It is one I know had total 
bipartisan support in the committee. I think it will have strong 
bipartisan support on the floor. The President has already indicated 
his support for the basic principle of judicial enforcement of 
regulatory flexibility.
  Mr. President, I only say we are still ready to do business if the 
Members on the other side change their mind. It is too bad we have 
valuable time set aside on the floor and we are not able to move.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order of 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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