[Congressional Record (Bound Edition), Volume 146 (2000), Part 16]
[Senate]
[Pages 23124-23126]
[From the U.S. Government Publishing Office, www.gpo.gov]



                          FEDERAL REGULATIONS

  Mr. INHOFE. Mr. President, in fiscal year, FY, 2000, some 54 federal 
departments and agencies and over 130,000 federal employees spent over 
$18.7 billion writing and enforcing federal regulations.
  The number of full-time positions in regulatory agencies reached an 
all- time high during the Clinton/Gore Administration. The era of big 
government is not over. In fact, it is in its hey day. In FY 2000, 
bureaucratic staffing set a new record, exceeding the previous all-time 
high of 130,039 in FY 1995.
  Rochester Institute of Technology's Professor Thomas Hopkins 
estimates that the total cost of federal regulation will be $721 
billion in 2000, which is equal to about 40 percent of all federal 
spending--representing a hidden tax of more than $6,800 per year for 
each American family. This represents direct compliance costs, not 
indirect

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costs such as the cost of lost productivity, increased cost of goods 
and services, as we are seeing with gas prices right now, and lower 
wages--among others.
  These figures are very important for us in Washington to keep in 
mind--when we are developing laws and regulations. When considering the 
entire federal budget, $6,800 per year may seem like peanuts, but 
$6,800 is a great deal of money to millions of hard working Americans.
  To put Professor Hopkins' estimates in perspective, current 
regulatory costs are about 40 percent of the size of the federal 
budget--which stands at an estimated $1.9 trillion in FY2000--and 
represent about 8 percent of America's gross domestic product. 
Moreover, Hopkins' estimates of annual U.S. regulatory costs exceed the 
entire 1998 GDP of such countries as Canada, $604 billion; Spain, $553 
billion; Australia, $364 billion; and Russia, $275 billion.
  Beyond the cost of regulations and the size of the federal 
bureaucracy, a very troublesome trend is occurring in the regulatory 
arena right now. In its last few days in office, the Clinton/Gore 
Administration is currently pushing through a number of new rules--
particularly in the environmental arena. This last-minute regulatory 
push, also known as ``midnight-regulation,'' serves two purposes for 
the Clinton/Gore administration: (1) to pander to the special interest 
groups and (2) to make regulatory decisions more difficult for the next 
administration.
  This administration is playing a zero sum loss game with the 
regulatory process. While special interests and bureaucrats are 
winning, the American people are losing. When well thought out and 
reflecting consensus, regulations can certainly provide benefits to the 
American people. However, what is most disturbing is the fact that this 
administration will promulgate these regulations at any cost--at the 
financial cost of the American people--at the cost of making a mockery 
of rulemaking due process--even at the cost of environmental 
protection. This isn't just my opinion, other experts agree. Wendy 
Gramm, former Administrator of OMB's Office of Information and 
Regulatory Affairs, and Susan Dudley--both of whom are with George 
Mason University's Mercatus Center-- recently wrote in an article in 
The Atlanta Journal, ``when regulations are rushed into effect without 
adequate thought, they are likely to do more harm than good.''
  Eighty-eight rulemakings are in the process at the EPA.
  On August 25, 2000, a Washington Post article's byline read, 
``[m]indful that Republicans could occupy the White House in less than 
six months, the Clinton administration is working feverishly to issue a 
host of new regulations supported by environmentalists and other 
liberal leaning groups . . .'' The article goes on to state that, 
``[a]t the EPA alone, officials have listed 67 regulatory decisions 
looming before Clinton's second term expires in January.''
  In response to the Washington Post article, the National 
Manufacturers' Association requested this list of 67 pending 
``regulatory decisions.'' However, NMA's request was denied. Thanks to 
the leadership of Representative David McIntosh, the Clinton/Gore 
Administration submitted the list of regulations. Representative 
McIntosh discovered that it was not 67 regulatory decisions--but rather 
88! This does not include the numerous interim final regulations, 
policy statements, and guidance documents, which EPA is pushing 
through.
  In fact, the average pages of regulations in the Federal Register is 
currently sky-rocketing. Currently, the Clinton/Gore Administration is 
averaging 210 pages of regulations per day in the Federal Register. The 
last time that the American people experienced such a flood of 
regulations was at the end of the Carter Administration--when the 
Federal Register had an average of 200 pages of regulations per day. 
Mr. President, there is a graph of the average number of regulations in 
the Federal Register during election years since the Ford 
Administration.
  Here are some examples:
  The Clinton/Gore administration's ``Total Maximum Daily Load'' or 
``TMDL'' Rule.
  The now final TMDL rule drew more than 30,000 public comments and has 
been the subject of 12 congressional hearings. An overwhelming majority 
of these citizens, including environmental, community, state, labor 
union, and business organizations, expressed their opposition to the 
rule. Their concerns have included such issues as the rule's 
effectiveness, costs, technical and scientific feasibility, and basic 
structure.
  On June 30, 2000, in response to the testimony and thousands of 
letters that I and other Members of Congress received in opposition to 
EPA's proposed TMDL rule, Congress included a provision in the FY 2001 
Military Construction Appropriations Act that would prohibit EPA from 
implementing this rule. This provision was a bipartisan attempt to 
direct the EPA to take a step back and address the concerns of the 
American people--not a sneak attack on the environment as many 
extremist environmental groups tried to portray it.
  The U.S. Congress sent a clear message to the White House and EPA. 
However, the Clinton/Gore Administration allowed EPA to finalize its 
proposed TMDL rule shortly before President Clinton signed the FY 2001 
Military Construction Appropriations Act into law. I have grave 
concerns about any Administration which seeks to make the will of 
Congress ``meaningless''--which is what the White House was quoted as 
saying. The very thought of such an action is a vulgar abuse of power 
and blatant disregard for the legislative branch of our government.
  The Clinton/Gore EPA's poorly thought-out sulphur/diesel rule.
  For some reason the EPA is shocked and surprised that fuel prices are 
spiking because of the introduction of the new RFG phase 2 regulations. 
The trouble is the EPA continues to roll out new restrictions and 
regulations on gasoline and gasoline formulas without any regard to 
what the consequences are to the consumer. I am concerned that the 
Clinton/Gore sulfur diesel regulation is a perfect example. This is a 
regulation which will cause price spikes for fuel over the next ten 
years, and EPA has done a miserable job in predicting the consequences 
of this regulation. I believe there will be severe shortages of diesel 
fuel which will lead to higher prices for truckers, farmers, and the 
home heating market. It is highly likely that instead of installing the 
expensive desulfurization equipment many companies will choose to 
export their diesel instead of selling in the U.S., creating greater 
shortages. While they are discussing finalizing this rule, they are 
also discussing the need for a technology review in three years on the 
pollution devices for the trucks themselves. It seems the EPA is not 
sure if the technology will be available which requires the low sulfur 
diesel fuel. But this review will take place after the refiners begin 
installing the expensive low sulfur equipment.
  The real shame in this is that it could be avoided if the EPA were 
more reasonable in their expectations. Instead of calling for a 97 
percent reduction in sulfur, they could have taken a 90 percent 
reduction in sulfur which would have produced the same benefits for 
particulate matter at half the cost. While it is true that NOx would 
only be reduced by 75 percent instead of 95 percent. I think we need to 
stop and look at it, 75 percent reduction at half the cost is a 
bargain. Once again the EPA appears bent on chasing pennies of benefits 
for dollars of costs.
  My subcommittee will be looking even more closely at the cost of 
EPA's programs on our nation's fuel supply. I really think the lasting 
legacy of Carol Browner might very well end up being these gasoline 
price spikes over the next ten years, unless something is done to 
restore some sanity to this process.
  EPA's arsenic regulation.
  The EPA is reconsidering its proposal for lowering the federal 
standard for arsenic in drinking water. The 5ppb standard, for which 
EPA is seeking comment, is scientifically unjustifiable. Many experts 
believe that ``given the available information EPA has provided, a 
final standard below 20 ppb can

[[Page 23126]]

not be justified.'' This rule is anticipated to cost $1.5 billion 
annually and require $14 billion in capital investments--threatening to 
bankrupt small towns. EPA's own analysis reveals will impose net costs 
on users of drinking water systems. Unfortunately, this regulation is 
just another example of the EPA putting the policy ahead of the 
science--at the cost of the American people.
  Mr. President, I could go on and on about these midnight regulations.
  The Clinton/Gore administration is circumventing regulatory 
rulemaking due process.
  A fundamental safeguard provided by the Administrative Procedure Act 
(the ``APA'') is to ensure that federal agencies provide an opportunity 
for informed and meaningful public participation as part of the 
regulatory rulemaking process.
  As if midnight regulations were not bad enough, the Clinton/Gore 
administration attempts to short-cut APA safeguards by the issuance of 
interim final rules, guidance documents, and policy statements. These 
documents, which do not go through the notice and comment rulemaking 
process required by the APA, are not subject to review by the courts. 
Often, these documents suggest that regulated entities must comply with 
requirements beyond the requirements found in law or regulation. Though 
agencies deny the fact these documents are legally biding, it is 
clearly an attempt to make law outside the rulemaking process--in a way 
which tries to shield agencies from judicial review.
  For example, on April 14, 2000, the U.S. Court of Appeals, in 
Appalachian Power v. EPA, struck down EPA's ``Periodic Monitoring'' 
Guidance. Among it's findings, the Court found: (1) EPA was creating 
broad new authority through the guidance document; (2) EPA did intend 
the guidance document to have binding effect; and (3) the guidance was 
illegally issued outside the APA rulemaking procedures.
  From 1992 to 1999, the Clinton/Gore EPA published over sixty-five 
interim final rules, guidance, and policy statements in the Federal 
Register. However, there are many more of these documents, which have 
never been published in the Federal Register--in violation of the 
Federal Register Act.
  And the cycle continues . . . on August 28, 2000, EPA has just issued 
a guidance document on Environmental Justice. While I will reserve the 
policy discussion on environmental justice for another time, the 
process question arises again. Even though the Congress and many 
stakeholders urged EPA to issue an Environmental Justice Rule, which 
would be subject to the APA's opportunity for notice and comment as 
well as judicial review, the EPA refused to do so. Instead, the EPA 
again created a binding regulation, albeit through a guidance document, 
which is not subject to judicial review.
  Additionally, in the case of many of the 88 rules, EPA will argue 
that the regulation has been a work in progress for years. EPA's claim 
begs the question, ``Then why cram through the final product when EPA 
is juggling so many balls at once.'' Though some of the regulations may 
have been proposed before, it does not mean that the proposal is still 
relevant--which we see with EPA's Proposed New Source Review Rule. In 
this and other cases, EPA should re-propose the rule rather than going 
final with it's obsolete, out-dated proposed rule.
  In conclusion, the Clinton/Gore Administration is in overdrive to 
make policy by administrative edict where it has failed to do so by the 
legislative process or by following the regular regulatory order. 
President Clinton and Vice President Gore can't really believe that the 
less the public participates the better--but they're acting like they 
do. The fact that the EPA is cramming though scores of rules and other 
regulatory decisions without public discourse is irresponsible. I call 
on the Administration to exercise regulatory restraint and stop 
exceeding its legal authority without undergoing appropriate rulemaking 
procedures.
  Rushed and poor judgement and deliberate acts that exceed an agency's 
authority can cause serious disruptions in the course of American 
families' lives. Therefore, I, along with other Members of Congress, 
will explore the various options, which Congress could use to address 
this Administration's numerous egregious political and anti-democratic 
actions. Environmental protection is vitally important, but so is the 
integrity of our government.

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