[Congressional Record Volume 151, Number 43 (Wednesday, April 13, 2005)]
[Senate]
[Pages S3557-S3560]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. SNOWE:
  S. 769. A bill to enhance compliance assistance for small businesses; 
to the Committee on Small Business and Entrepreneurship.
  Ms. SNOWE. Mr. President, as Chair of the Senate Committee on Small 
Business and Entrepreneurship, regulatory fairness remains one of my 
top priorities. In 1996, I was pleased to support, along with all of my 
colleagues, the Small Business Regulatory Enforcement Fairness Act, 
SBREFA, which made the Regulatory Flexibility Act more effective in 
curtailing the impact of regulations on small businesses. One of the 
most important provisions of SBREFA compels agencies to produce 
compliance assistance materials to help small businesses satisfy the 
requirements of agency regulations. Unfortunately, over the years, 
agencies have failed to achieve this requirement. Consequently, small 
businesses have been forced to figure out on their own how to comply 
with these regulations. This makes compliance that much more difficult 
to achieve, and therefore reduces the effectiveness of the regulations.
  The Government Accountability Office, GAO, found that agencies have 
ignored this requirement or failed miserably in their attempts to 
satisfy it. The GAO also found that SBREFA's language is unclear in 
some places about what is actually required. That is why today, I am 
introducing The Small Business Compliance Assistance Enhancement Act of 
2005, to close those loopholes, and to make it clear that we were 
serious when we first told agencies, and that we want them to produce 
quality compliance assistance materials to help small businesses 
understand how to deal with regulations.
  My bill is drawn directly from the GAO recommendations and is 
intended only to clarify an already existing requirement--not to add 
anything new. Similarly, the compliance guides that the agencies will 
produce will be suggestions about how to satisfy a regulation's 
requirements, and will not impose further requirements or additional 
enforcement measures. Nor does this bill, in any way, interfere or 
undercut agencies' ability to enforce their regulations to the full 
extent they currently enjoy. Bad actors must be brought to justice, but 
if the only trigger for compliance is the threat of enforcement, then 
agencies will never achieve the goals at which their regulations are 
directed.
  The key to helping small businesses comply with these regulations is 
to provide assistance--showing them what is necessary and how they will 
be able to tell when they have met their obligations. Too often, small 
businesses do not maintain the staff, or possess the resources to 
answer these questions. This is a disadvantage when compared to larger 
businesses, and reduces the effectiveness of the agency's regulations. 
The SBA's Office of Advocacy has determined that regulatory compliance 
costs small businesses with less than 20 employees almost $7,000 per 
employee, compared to almost $4,500 for companies with more than 500 
employees. If an agency can not describe how to comply with its 
regulation, how can we expect a small business to figure it out? This 
is the reason the requirement to provide compliance assistance was 
originally included in SBREFA. That reason is as valid today as it was 
in 1996.
  Specifically, my bill would do the following:
  Clarify how a guide shall be designated: Section 212 of SBREFA 
currently requires that agencies ``designate'' the publications 
prepared under the section as small entity compliance guides. However, 
the form in which those designations should occur is not clear. 
Consistent use of the phrase ``Small Entity Compliance Guide'' in the 
title could make it easier for small entities to locate the guides that 
the agencies develop. This would also aid in using on line searches--a 
technology that was not widely used when SBREFA was passed. Thus, 
agencies would be directed to publish guides entitled ``Small Entity 
Compliance Guide.''
  Clarify how a guide shall be published: Section 212 currently states 
agencies ``shall publish'' the guides, but does not indicate where or 
how they should be published. At least one agency has published the 
guides as part of the preamble to the subject rule, thereby requiring 
affected small entities to read the Federal Register to obtain the 
guides. Agencies would be directed, at a minimum, to make their 
compliance guides available through their websites in an easily 
accessible way. In addition, agencies would be directed to forward 
their compliance guides to known industry contacts such as small 
businesses or associations with small business members that will be 
affected by the regulation.
  Clarify when a guide shall be published: Section 212 does not 
indicate when the compliance guides should be published. Therefore, 
even if an agency is required to produce a compliance guide, it can 
claim that it has not violated the publishing requirement because there 
is no clear deadline. Agencies would be instructed to publish the 
compliance guides simultaneously with, or as soon as possible after, 
the final rule is published, provided that the guides must be published 
no later than the effective date of the rule's compliance requirements.
  Clarify the term ``compliance requirements'': The term ``compliance 
requirements'' also needs to be clarified. At a minimum, compliance 
requirements must identify what small

[[Page S3558]]

businesses must do to satisfy the requirements and how they will know 
that they have met these requirements. This should include a 
description of the procedures a small business might use to meet the 
requirements. For example, if, as is the case with many OSHA and EPA 
regulations, testing is required, the agency should explain how that 
testing might be conducted. The bill makes clear that the procedural 
description should be merely suggestive--an agency would not be able to 
enforce this procedure if a small business was able to satisfy the 
requirements through a different approach.
  It is time we get serious about ensuring that small businesses have 
the assistance they need to deal with the maze of Federal regulations 
we expect them to handle on a daily basis. The Small Business 
Compliance Assistance Enhancement Act of 2005 will make a significant 
contribution to that effort.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 769

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Small Business Compliance 
     Assistance Enhancement Act of 2005''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds the following:
       (1) Small businesses represent 99.7 percent of all 
     employers, employ half of all private sector employees, and 
     pay 44.3 percent of total United States private payroll.
       (2) Small businesses generated 60 to 80 percent of net new 
     jobs annually over the last decade.
       (3) Very small firms with fewer than 20 employees spend 60 
     percent more per employee than larger firms to comply with 
     Federal regulations. Small firms spend twice as much on tax 
     compliance as their larger counterparts. Based on an analysis 
     in 2001, firms employing fewer than 20 employees face an 
     annual regulatory burden of nearly $7,000 per employee, 
     compared to a burden of almost $4,500 per employee for a firm 
     with over 500 employees.
       (4) Section 212 of the Small Business Regulatory 
     Enforcement Fairness Act of 1996 (5 U.S.C. 601 note) requires 
     agencies to produce small entity compliance guides for each 
     rule or group of rules for which an agency is required to 
     prepare a final regulatory flexibility analysis under section 
     604 of title 5, United States Code.
       (5) The Government Accountability Office has found that 
     agencies have rarely attempted to comply with section 212 of 
     the Small Business Regulatory Enforcement Fairness Act of 
     1996 (5 U.S.C. 601 note). When agencies did try to comply 
     with that requirement, they generally did not produce 
     adequate compliance assistance materials.
       (6) The Government Accountability Office also found that 
     section 212 of the Small Business Regulatory Enforcement 
     Fairness Act of 1996 (5 U.S.C. 601 note) and other sections 
     of that Act need clarification to be effective.
       (b) Purposes.--The purposes of this Act are the following:
       (1) To clarify the requirement contained in section 212 of 
     the Small Business Regulatory Enforcement Fairness Act of 
     1996 (5 U.S.C. 601 note) for agencies to produce small entity 
     compliance guides.
       (2) To clarify other terms relating to the requirement in 
     section 212 of the Small Business Regulatory Enforcement 
     Fairness Act of 1996 (5 U.S.C. 601 note).
       (3) To ensure that agencies produce adequate and useful 
     compliance assistance materials to help small businesses meet 
     the obligations imposed by regulations affecting such small 
     businesses, and to increase compliance with these 
     regulations.

     SEC. 3. ENHANCED COMPLIANCE ASSISTANCE FOR SMALL BUSINESSES.

       (a) In General.--Section 212 of the Small Business 
     Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601 
     note) is amended by striking subsection (a) and inserting the 
     following:
       ``(a) Compliance Guide.--
       ``(1) In general.--For each rule or group of related rules 
     for which an agency is required to prepare a final regulatory 
     flexibility analysis under section 605(b) of title 5, United 
     States Code, the agency shall publish 1 or more guides to 
     assist small entities in complying with the rule and shall 
     entitle such publications `small entity compliance guides'.
       ``(2) Publication of guides.--The publication of each guide 
     under this subsection shall include--
       ``(A) the posting of the guide in an easily identified 
     location on the website of the agency; and
       ``(B) distribution of the guide to known industry contacts, 
     such as small entities, associations, or industry leaders 
     affected by the rule.
       ``(3) Publication date.--An agency shall publish each guide 
     (including the posting and distribution of the guide as 
     described under paragraph (2))--
       ``(A) on the same date as the date of publication of the 
     final rule (or as soon as possible after that date); and
       ``(B) not later than the date on which the requirements of 
     that rule become effective.
       ``(4) Compliance actions.--
       ``(A) In general.--Each guide shall explain the actions a 
     small entity is required to take to comply with a rule.
       ``(B) Explanation.--The explanation under subparagraph 
     (A)--
       ``(i) shall include a description of actions needed to meet 
     the requirements of a rule, to enable a small entity to know 
     when such requirements are met; and
       ``(ii) if determined appropriate by the agency, may include 
     a description of possible procedures, such as conducting 
     tests, that may assist a small entity in meeting such 
     requirements.
       ``(C) Procedures.--Procedures described under subparagraph 
     (B)(ii)--
       ``(i) shall be suggestions to assist small entities; and
       ``(ii) shall not be additional requirements relating to the 
     rule.
       ``(5) Agency preparation of guides.--The agency shall, in 
     its sole discretion, taking into account the subject matter 
     of the rule and the language of relevant statutes, ensure 
     that the guide is written using sufficiently plain language 
     likely to be understood by affected small entities. Agencies 
     may prepare separate guides covering groups or classes of 
     similarly affected small entities and may cooperate with 
     associations of small entities to develop and distribute such 
     guides. An agency may prepare guides and apply this section 
     with respect to a rule or a group of related rules.
       ``(6) Reporting.--Not later than 1 year after the date of 
     enactment of the Small Business Compliance Assistance 
     Enhancement Act of 2005, and annually thereafter, the head of 
     each agency shall submit a report to the Committee on Small 
     Business and Entrepreneurship of the Senate and the Committee 
     on Small Business of the House of Representatives describing 
     the status of the agency's compliance with paragraphs (1) 
     through (5).''.
       (b) Technical and Conforming Amendment.--Section 211(3) of 
     the Small Business Regulatory Enforcement Fairness Act of 
     1996 (5 U.S.C. 601 note) is amended by inserting ``and 
     entitled'' after ``designated''.
  By Mr. LEVIN (for himself, Ms. Collins, Mr. Jeffords, Ms. Stabenow, 
Mr. DeWine, Mr. Bayh, Mr. Dayton, Mr. Leahy, Mr. Kennedy, Mr. Reed, Mr. 
Lautenberg, Mr. Warner, and Mr. Akaka):
  S. 770. A bill to amend the Nonindigenous Aquatic Nuisance Prevention 
and Control Act of 1990 to reauthorize and improve that Act; to the 
Committee on Environment and Public Works.
  Mr. LEVIN. Mr. President, today my colleague from Maine, Senator 
Collins and I are very pleased to introduce the National Aquatic 
Invasive Species Act of 2005. This bill, which reauthorizes the 
Nonindigenous Aquatic Nuisance Prevention and Control Act, takes a 
comprehensive approach towards addressing aquatic nuisance species to 
protect the nation's aquatic ecosystems. Invasive species are not a new 
problem for this country, but what is so important about this bill is 
that this is the first real effort to take a comprehensive approach 
toward the problem of aquatic invasive species. The bill deals with the 
prevention of introductions, the screening of new aquatic organisms 
that do come into the country, the rapid response to invasions, and the 
research to implement the provisions of this bill.
  During the development of this country, there were more than people 
immigrating to this country. More than 6,500 non-indigenous invasive 
species have been introduced into the United States and have become 
established, self-sustaining populations. These species--from 
microorganisms to mollusks, from pathogens to plants, from insects to 
fish to animals--typically encounter few, if any, natural enemies in 
their new environments and wreak havoc on native species. Aquatic 
nuisance species threaten biodiversity nationwide, especially in the 
Great Lakes.
  In fact, the aquatic nuisance species became a major issue for 
Congress back in the late eighties when the zebra mussel was released 
into the Great Lakes. The Great Lakes still have zebra mussels, and 
now, 20 States are fighting to control them. The Great Lakes region 
spends about $30 million per year to keep water pipes from becoming 
clogged with zebra mussels.
  Zebra mussels were carried over from the Mediterranean to the Great 
Lakes in the ballast tanks of ships. The leading pathway for aquatic 
invasive species was and still is maritime commerce. Most invasive 
species are contained in the water that ships use for

[[Page S3559]]

ballast to maintain trim and stability. Aquatic invaders such as the 
zebra mussel and round goby were introduced into the Great Lakes when 
ships, often from nations, pulled into port and discharged their 
ballast water. In addition to ballast water, aquatic invaders can also 
attach themselves to ships' hulls and anchor chains.
  Because of the impact that the zebra mussel had in the Great Lakes, 
Congress passed legislation in 1990 and 1996 that has reduced, but not 
eliminated, the threat of new invasions by requiring ballast water 
management for ships entering the Great Lakes. Today, there is a 
mandatory ballast water management program in the Great Lakes, and the 
Coast Guard is in the rule-making process to turn the voluntary ballast 
water exchange reporting requirement into a mandatory ballast water 
exchange program for all of our coasts. The current law requires that 
ships entering the Great Lakes must exchange their ballast water, seal 
their ballast tanks or use alternative treatment that is ``as effective 
as ballast water exchange.'' Unfortunately, alternative treatments have 
not been fully developed and widely tested on ships because the 
developers of ballast technology do not know what standard they are 
trying to achieve. This obstacle is serious because ultimately, only 
on-board ballast water treatment will adequately reduce the threat of 
new aquatic nuisance species being introduced through ballast water.
  Our bill addresses this problem. First, this bill establishes a 
deadline for the Coast Guard and EPA to establish a standard for 
ballast water management and requires that the standard reduce the 
number of plankton in the ballast water by 99 percent or the best 
performance that technology can provide. This way, technology vendors 
and the maritime industry know what they should be striving to achieve 
and when they will be expected to achieve it. After 2011, all ships 
that enter any U.S. port after operating outside the Exclusive Economic 
Zone of 200 miles will be required to use a ballast water treatment 
technology that meets this standard.

  I understand that ballast water technologies are being researched, 
and some are currently being tested on-board ships. The range of 
technologies include ultraviolet lights, filters, chemicals, 
deoxygenation, ozone, and several others. Each of these technologies 
has a different price tag attached to it. It is not my intention to 
overburden the maritime industry with an expensive requirement to 
install technology. In fact, the legislation states that the final 
ballast water technology standard must be based on the best performing 
technology that is economically achievable. That means that the Coast 
Guard must consider what technology is available, and if there is no 
economically achievable technology available to a class of vessels, 
then the standard will not require ballast technology for that class of 
vessels, subject to review every three years. I do not believe this 
will be the case, however, because the approach of this bill creates a 
clear incentive for treatment vendors to develop affordable equipment 
for the market.
  Technology will always be evolving, and we hope that affordable 
technology will become available that completely eliminates the risk of 
new introductions. Therefore, it is important that the Coast Guard 
regularly review and revise the standard so that it reflects what the 
best technology currently available is and whether it is economically 
achievable.
  There are other important provisions of the bill that also address 
prevention. For instance, the bill encourages the Coast Guard to 
consult with Canada, Mexico, and other countries in developing 
guidelines to prevent the introduction and spread of aquatic nuisance 
species. The Aquatic Nuisance Species Task Force is also charged with 
conducting a pathway analysis to identify other high risk pathways for 
introduction of nuisance species and implement management strategies to 
reduce those introductions. And this legislation, for the first time, 
establishes a process to screen live organisms entering the country for 
the first time for non-research purposes. Organisms believed to be 
invasive would be imported based on conditions that prevent them from 
becoming a nuisance. Such a screening process might have prevented such 
species as the Snakehead, which has established itself in the Potomac 
River here in the DC area, from being imported.
  The third title of this bill addresses early detection of new 
invasions and the rapid response to invasions as well as the control of 
aquatic nuisance species that do establish themselves. If fully funded, 
this bill will provide a rapid response fund for states to implement 
emergency strategies when outbreaks occur. The bill requires the Army 
Corps of Engineers to construct and operate the Chicago Ship and 
Sanitary Canal project which includes the construction of a second 
dispersal barrier to keep species like the Asian carp from migrating up 
the Mississippi through the Canal into the Great Lakes. Equally 
important, this barrier will prevent the migration of invasive species 
in the Great Lakes from proceeding into the Mississippi system.
  Lastly, the bill authorizes additional research which will identify 
threats and the tools to address those threats.
  Though invasive species threaten the entire Nation's aquatic 
ecosystem, I am particularly concerned with the damage that invasive 
species have done to the Great Lakes. There are now roughly 180 
invasive species in the Great Lakes, and it is estimated that a new 
species is introduced every 8 months. Invasive species cause 
disruptions in the food chain, which is now causing the decline of 
certain fish. Invasive species are believe to be the cause of a new 
dead zone in Lake Erie. And invasive species compete with native 
species for habitat.
  This bill addresses the ``NOBOB'' or No Ballast on Board problem 
which is when ships report having no ballast when they enter the Great 
Lakes. However, a layer of sediment and small bit of water that cannot 
be pumped out is still in the ballast tanks. So when water is taken on 
and then discharged all within the Great Lakes, a new species that was 
still living in that small bit of sediment and water may be introduced. 
By requiring technology to be installed, this bill addresses a very 
serious issue in the Great Lakes.
  All in all, the bill would cost between $160 million and $170 million 
each year. This is a lot of money, but it is a critical investment. As 
those of us from the Great Lakes know, the economic damage that 
invasive species can cause is much greater. However, compared to the 
annual cost of invasive species, the cost of this bill is minimal. 
Therefore, I urge my colleagues to cosponsor this legislation and work 
to move the bill swiftly through the Senate.
  Ms. COLLINS. Mr. President, from Pickerel Pond to Lake Auburn, from 
Sebago Lake to Bryant Pond, lakes and ponds in Maine are under attack. 
Aquatic invasive species threaten Maine's drinking water systems, 
recreation, wildlife habitat, lakefront real estate, and fisheries. 
Plants, such as Variable Leaf Milfoil, are crowding out native species. 
Invasive Asian shore crabs are taking over Southern New England's tidal 
pools and have advanced well into Maine--to the potential detriment of 
Maine's lobster and clam industries.
  I rise today to join Senator Levin in introducing legislation to 
address this problem. The National Aquatic Invasive Species Act of 2005 
would create the most comprehensive nationwide approach to date for 
combating alien species that invade our shores.
  The stakes are high when invasive species are unintentionally 
introduced into our Nation's waters. They endanger ecosystems, reduce 
biodiversity, and threaten native species. They disrupt people's lives 
and livelihoods by lowering property values, impairing commercial 
fishing and aquaculture, degrading recreational experiences, and 
damaging public water supplies.
  In the 1950s, European Green Crabs swarmed the Maine coast and 
literally ate the bottom out of Maine's soft-shell clam industry by the 
1980s. Many clam diggers were forced to go after other fisheries or 
find new vocations. In just one decade, this invader reduced the number 
of clam diggers in Maine from nearly 5,000 in the 1940s to fewer than 
1500 in the 1950s. European green crabs currently cost an estimated $44 
million a year in damage and control efforts in the United States.
  Past invasions forewarn of the long-term consequences to our 
environment and communities unless we take steps to prevent new 
invasions. It is too late

[[Page S3560]]

to stop European green crabs from taking hold on the East Coast, but we 
still have the opportunity to prevent many other species from taking 
hold in Maine and the United States.
  Senator Levin and I introduced an earlier version of this legislation 
in March of 2003. Just a few months earlier, one of North America's 
most aggressive invasive species hydrilla--was found in Maine for the 
first time. This stubborn and fast-growing aquatic plant had taken hold 
in Pickerel Pond in the Town of Limerick, ME, and threatened 
recreational use for swimmers and boaters. At the time, we warned that 
unless Congress acted, more and more invasive species would establish a 
foothold in Maine and across the country.
  Unfortunately, Congress failed to act on our legislation and new 
invasions have continued. In December, for the first time, the Maine 
Department of Environmental Protection detected Eurasian Milfoil in the 
State. Maine was the last of the lower 48 States to be free of this 
stubborn and fast-growing invasive plant that degrades water quality by 
displacing native plants, fish and other aquatic species. The plant 
forms stems reaching up to 20 feet high that cause fouling problems for 
swimmers and boaters. In total, there are 24 documented cases of 
aquatic invasive species infesting Maine's lakes and ponds.

  When considering the impact of these invasive species, it is 
important to note the tremendous value of our lakes and ponds. While 
their contribution to our quality of life is priceless, their value to 
our economy is more measurable. Maine's Great Ponds generate nearly 13 
million recreational user days each year, lead to more than $1.2 
billion in annual income for Maine residents, and support more than 
50,000 jobs.
  With so much at stake, Mainers are taking action to stop the spread 
of invasive species into our State's waters. The State of Maine has 
made it illegal to sell, posses, cultivate, import or introduce eleven 
invasive aquatic plants. Boaters participating in the Maine Lake and 
River Protection Sticker program are providing needed funding to aid 
efforts to prevent, detect and manage aquatic invasive plants. 
Volunteers are participating in the Courtesy Boat Inspection program to 
keep aquatic invasive plants out of Maine lakes. Before launch or after 
removal, inspectors ask boaters for permission to inspect the boat, 
trailer or other equipment for plants. More than 300 trained inspectors 
conducted upwards of 30,000 courtesy boat inspections at 65 lakes in 
the 2004 boating season.
  While I am proud of the actions that Maine and many other States are 
taking to protect against invasive species, all too often their efforts 
have not been enough. As with national security, protecting the 
integrity of our lakes, streams, and coastlines from invading species 
cannot be accomplished by individual States alone. We need a uniform, 
nationwide approach to deal effectively with invasive species. The 
National Aquatic Invasive Species Act of 2005 will help my State and 
States throughout the Nation detect, prevent and respond to aquatic 
invasive species.
  The National Aquatic Invasive Species Act of 2005 would be the most 
comprehensive effort ever undertaken to address the threat of invasive 
species. By authorizing $836 million over 6 years, this legislation 
would open numerous new fronts in our war against invasive species. The 
bill directs the Coast Guard to develop regulations that will end the 
easy cruise of invasive species into U.S. waters through the ballast 
water of international ships, and would provide the Coast Guard with $6 
million per year to develop and implement these regulations.
  The bill also would provide $30 million per year for a grant program 
to assist State efforts to prevent the spread of invasive species. It 
would provide $12 million per year for the Army Corps of Engineers and 
Fish and Wildlife Service to contain and control invasive species. 
Finally, the Levin-Collins bill would authorize $30 million annually 
for research, education, and outreach.

  Mr. President, the most effective means of stopping invading species 
is to attack them before they attack us. We need an early alert, rapid 
response system to combat invading species before they have a chance to 
take hold. For the first time, this bill would establish a national 
monitoring network to detect newly introduced species, while providing 
$25 million to the Secretary of the Interior to create a rapid response 
fund to help States and regions respond quickly once invasive species 
have been detected. This bill is our best effort at preventing the next 
wave of invasive species from taking hold and decimating industries and 
destroying waterways in Maine and throughout the country.
  One of the leading pathways for the introduction of aquatic organisms 
to U.S. waters from abroad is through transoceanic vessels. Commercial 
vessels fill and release ballast tanks with seawater as a means of 
stabilization. The ballast water contains live organisms from plankton 
to adult fish that are transported and released through this pathway. 
Last week, a Federal judge ruled that the Government can no longer 
allow ships to dump, without a permit from the Environmental Protection 
Agency, any ballast water containing nonnative species that could harm 
local ecosystems. The court case and subsequent decision indicates that 
there are problems with our existing systems to control ballast water 
discharge and signals a need to address invasive hitchhikers that 
travel to our shores aboard ships. Our legislation would establish a 
framework to prevent the introduction of aquatic invasive species by 
ships.
  The National Aquatic Invasive Species Act of 2005 offers a strong 
framework to combat aquatic invasive species. I call on my colleagues 
to help us enact this legislation in order to protect our waters, 
ecosystems, and industries from destructive invasive species--before 
it's too late.
                                 ______