(Senate - March 07, 1996)

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[Pages S1636-S1638]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                   UNANIMOUS-CONSENT REQUEST--S. 942

  Mr. BOND. I thank the Chair. Mr. President, as I said earlier today, 
we are trying to move to Calendar No. 342, S. 942, the small business 
regulatory reform bill. I understand, if I ask unanimous consent to 
move to consideration of the bill at this moment, there will be an 
objection; so I ask.
  Mr. SIMON. Yes. Mr. President, in behalf of Senator Daschle, for 
reasons he has outlined earlier, I will object.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I have heard some concern expressed that 
this measure may become a broad measure and involve many other items, 
such as controversial items that are included in the major regulatory 
reform bill, S. 343, which I personally hope is moving toward 
  There are a significant number of Members on both sides moving 
forward on that, but in order to assure my colleagues that we want to 
keep the focus on small business, we have a consent decree which would, 
I think, narrow it.
  I want to read this consent request carefully so that other Members 
can listen to it, so they can think about it and see whether this would 
be the format under which we could bring the bill up.
  Mr. President, I ask unanimous consent that on Tuesday, March 12, at 
11 a.m., the Senate proceed to the consideration of Calendar No. 342, 
S. 942, the small business regulatory reform bill, and it be considered 
under the following limitation:
  Ninety minutes of total debate, equally divided between the two 
managers; that the only amendments in order to the bill be the 
  A managers' amendment to be offered by Senators Bond and Bumpers; an 
amendment to be offered by Senator Nickles regarding congressional 
review; and one additional amendment, if agreed to by both leaders, 
after consultation with the two managers.
  Further, that following the expiration or yielding back of all time, 
any pending amendments and the bill be temporarily set aside; further, 
that immediately following any ordered cloture votes on Tuesday, March 
12, the Senate resume consideration of the bill, the Senate immediately 
vote on any pending amendments to the bill; and, further, following 
disposition of all pending amendments, the bill be read a third time, 
the Senate proceed to a vote on final passage, all without any 
intervening debate or action.
  Mr. SIMON. Mr. President, as the Senator from Missouri knows, I 
happen to be on the floor. I do not know the details of all this. I 
object on behalf of Senator Daschle to what appears to be a reasonable 
request. I think he should take it up with Senator Daschle.
  The PRESIDING OFFICER. Objection is heard.
  Mr. BOND. Mr. President, I thank the Chair, and I appreciate the 
position of my colleague and neighbor from Illinois. I realize there is 
objection on the other side.
  Let me suggest what the framework of the debate itself is. We will 
continue to discuss additional items to be brought up. I discussed with 
my ranking member, Senator Bumpers, the objectives of keeping this bill 
narrow. I believe we are in agreement. Whenever we can get the 
agreement of the minority to proceed, I will propose that we enter into 
an agreement on this basis so that we keep the amendments limited, and 
so that we can come to closure on this very important matter.
  Mr. President, since my good friend and neighbor from Arkansas is 
here, let us lay out some of the reasons that this bill is important. I 
have talked briefly about it before.
  Last June, almost 2,000 delegates to the White House Conference on 
Small Business came to Washington to give their best advice and counsel 
to the President and Congress. They voted on an agenda of the top 
concerns of small business. The Washington conference came after a 
year-long grassroots effort, where over 20,000 small business people 
sifted through more than 3,000 policy recommendations, some 59 
conferences at the State level, and six regional hearings.

  Over 400 of the most important policy recommendations were voted on 
by delegates to the White House conference. The top 60 recommendations 
were published by the conference last September as a report to the 
President and Congress, entitled ``Foundation for a New Century.'' Not 
surprising, this gathering echoed the findings that we in the Small 
Business Committee have heard as we have held hearings in Washington 
and around the country. Three of the top findings of the White House 
Small Business Conference were calling for reforms in the way that 
Government regulations are developed, the way they are enforced, and 
reforming Government paperwork requirements.
  The common theme of all three recommendations is the need to change 
the culture of Government agencies, the need to provide an ear--a 
responsive ear--and a responsive attitude toward the small business and 
small entities that are the backbone of this country, the dynamic 
engine driving the growth of this economy.
  The Vice President said to the conference delegates last year, 
``Government regulators need to stop treating small business as 
potential suspects and start treating small business like a partner 
sharing in a common goal.'' The Vice President also noted that this 
change in the culture of Government may take years of effort to 
accomplish. Mr. President, I would say, parenthetically, that if we 
cannot even bring the bill up, it is going to take more than years.
  I am extremely disappointed that we cannot even get an agreement to 
bring the bill up next week. We have here before us a measure that is 
designed to

[[Page S1637]]

deal with one particular area of great importance to small businesses 
all across the country.
  One of the measures included in this bill is the Small Business 
Advocacy Act, recommended by Senator Domenici, filed in the form of S. 
917, which focused on the early involvement by small business in the 
development of new regulations. The bill was referred to the Small 
Business Committee, as was S. 942, the Small Business Regulatory 
Fairness Act, which I introduced. We have been working to combine 
elements of both bills in legislation that already had been considered 
on the Senate floor, which was the measure to provide judicial review 
and enforcement of the Regulatory Flexibility Act, which says, quite 
simply, that Federal agencies have to take into consideration the 
impact on small business of the regulations they issue.

  We had hearings before the Small Business Committee which confirm the 
importance of having this kind of reform. The SBA chief counsel for 
advocacy released a report that said that small businesses bear a 
disproportionate share of the regulatory burden. When you take a look 
at regulations as they affect large businesses and as they affect the 
smaller businesses with up to 50 employees, the cost for a small 
business is some 50 to 80 percent more per employee. Small business is 
put at a disadvantage not only in making a profit, but in competing 
with a larger business.
  Throughout our efforts in the Small Business Committee, I am proud to 
say that we have worked very closely and had the greatest cooperation 
from my ranking member, Senator Bumpers of Arkansas, and his staff. We 
have had great input from members of the committee, who have taken a 
very active role in holding hearings in their States and coming back 
with recommendations to give to us on how we can flesh out this bill 
and make it work better for small businesses in our States and across 
the country.
  This bill, S. 942, came out of the committee without any opposition, 
and the more people have talked about it, the more offers we have had 
to cosponsor it. I think the bill delivers on the legitimate regulatory 
concerns of small business, as well as the major recommendations of the 
White House Conference on Small Business, and it really does do 
something to address the disproportionately heavy impact that these 
regulations have on small business and on the paperwork burdens of 
small business.
  This legislation is narrowly focused on small business. It does not 
go into the big debates over more expansive and, I think, needed 
broader regulatory reform. These efforts need to go forward, but I 
think we have something we can deliver here now, today, and, if not 
today, for Heaven's sake, let us deliver it next week so small business 
in America can begin to see that somebody is listening.
  If there is one plaintive comment I have heard, both in my State of 
Missouri, at other hearings, and at the hearings up here, it is small 
business asking: ``Is anybody listening? Does anybody really care what 
the burdens the Federal Government places on small business are doing 
to the small businesses?'' I think it is time we answered the question, 
and I think it is time we answered, ``Yes, we are willing to listen and 
do something about it.'' I do not think that we can abandon these 
  We need to move forward with regulatory relief this year. I think, as 
I said in my remarks earlier today, judicial review of reg flex, the 
1980 provision that said regulatory agencies are supposed to consider 
small business, that has to be implemented, and there has to be teeth 
put in it. They have not done so. Regulatory agencies have routinely 
ignored the impact on small business. We need to give them some 
enforcement powers so that they will be heard.

  Equally important, we need to give enforcement reform some outlet to 
change the culture of regulators when they deal with small business so 
that somebody who has examples of regulators that have been 
overreaching can get a fair hearing and a fair shake from the 
regulators. These measures would level the playing field and bring some 
accountability into small business.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter from the National Federation of Independent Business from the 
Vice President of Federal Government Relations.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               National Federation

                                      of Independent Business,

                                    Washington, DC, March 7, 1996.
     Hon. Christopher Bond,
     Chairman, U.S. Senate, Washington, DC.
       Dear Mr. Chairman: On behalf of the more than 600,000 small 
     business owners of the National Federation of Independent 
     Business (NFIB), I urge all your colleagues to support S. 
     942, the Small Business Regulatory Enforcement Fairness Act 
     of 1996. The Bond-Bumpers legislation includes important 
     provisions that have been top priorities for NFIB members for 
     many years. It also includes provisions that were recommended 
     by small business owners at the 1995 White House Conference 
     on Small Business. The bill has these important elements:
       Strengthening the Regulatory Flexibility Act.
       Provisions that would encourage a more cooperative 
     regulatory enforcement environment regulation.
       Updating the Equal Access to Justice Act.
       Providing for the judicial review of the Regulatory 
     Flexibility Act of 1980 is of particular concern to the small 
     business community because it has the potential to fulfill 
     the promise of that 16 year old law. the purpose of 
     ``reg.flex.'' was to fit regulations to the scale and 
     resources of the regulated entity. A strong ``reg.flex.'' 
     process will provide a substantial measure of the regulatory 
     reform that small business owners have wanted for years.
       The vote on S. 942 will be a ``Key Small Business Vote'' of 
     the 104th Congress.

                                             Donald A. Danner,

                                                   Vice President,
                                     Federal Government Relations.

  Mr. BOND. Mr. President, it says, in part:

       On behalf of the more than 600,000 small business owners of 
     the National Federation of Independent Business, I urge all 
     your colleagues to support S. 942, the Small Business 
     Regulatory Enforcement Fairness Act of 1996. The Bond-Bumpers 
     legislation includes important provisions that have been top 
     priorities for NFIB members for many years. It also includes 
     provisions that were recommended by small business owners at 
     the 1995 White House conference on small business.

  It then goes on to describe it. It says, in closing, ``The vote on S. 
942 will be a key small business vote of the 104th Congress.''
  I see my colleague from Arkansas is on the floor so I yield the 
  Mr. BUMPERS. Mr. President, first, I want to express my sincere 
appreciation to the chairman of the Small Business Committee, my 
distinguished colleague, Senator Bond, who has spoken very eloquently 
about this whole issue.
  Second, I want to say that all the concerns I had about this bill--
and we had some--he has very graciously accommodated. I think the bill 
is to the point now that if it were permitted to be brought up it would 
sail through this Chamber by a vote of 100-zip.
  In 1980, Congress passed what we know as the Regulatory Flexibility 
Act. It was designed to lighten the regulatory burden on small 
businesses. What is wrong? It has not worked. The small business 
community feels that they have been taken because the bill simply did 
not provide the relief that was represented to them. Every White House 
conference for small business that has been held has put regulatory 
flexibility as one of the very top issues that concern them. In 1992 it 
was one of their top issues.
  Now here is an opportunity for Congress, for the first time, to keep 
faith with the small business community on something they say is just 
about the highest item on the agenda. There is absolutely no sense in 
anybody delaying the taking up or the passing of this bill.
  To those who are working on a much broader regulatory reform bill, I 
say, ``amen.'' You have my blessing. Stay with it. I hope some 
regulatory reform bill on a comprehensive basis is offered that I can 
support. Until that happy day, this bill ought to pass now. It is not 
related to the broader regulatory reform bill. This bill says very 
simple things, but they are dramatic and they are helpful.
  First, the Small Business Administration will have a small business 
ombudsman. Some guy comes into your office and says, ``Your fire 
extinguisher is 56 inches off the floor and it ought to only be 54 
inches off the floor, therefore I am fining you $100,'' they can

[[Page S1638]]

write a letter or call the ombudsman and say, ``This is ridiculous. Not 
only is he trying to fine me $100, he is arrogant. He is abusive.'' We 
are trying to comply with the law out here and make a living and the 
ombudsman can record it, sort of keep a report card on some of these 
people who come in with an abusive attitude. What is wrong with that?

  Second, we say and this is the most important part of the bill, 
henceforth and forevermore when you draft a regulation you will have to 
accompany it with an explanation in the mother tongue--which is 
English--and say in clear, plain, written English what this regulation 
does and what it takes to comply with it. It would not be a bad idea to 
let the IRS in on that, too. Why is the IRS perhaps the most detested 
of all Federal agencies? Because everything they do is subject to 18 
  Third, there is a broader equal access to justice provision in this 
bill which says small business is entitled to attorney fees in certain 
instances where they are sued and have to resist a regulation that is 
found to be outside the intent of Congress. What is wrong with that?
  We already have a rule that says a regulation that is found to be 
arbitrary and capricious can be stricken; but we do not have a bill 
that says if the courts find that OSHA or EPA or anybody else who tries 
to impose a regulation on you to be arbitrary and capricious, you win, 
but you lose because you do not get your attorney fees. Under this bill 
in such a case you would almost always get your attorney fees. That is 
the way it ought to be.
  Finally, we have a provision that is mildly controversial called 
judicial review. That is, if you do not like a regulation and you 
believe that it goes beyond the intent of Congress and that Congress 
did not intend this nonsense to be imposed on you, you challenge it. 
Haul them into court--why not? Congress passes a one-sentence law and 
the regulators will draft 1,000 regulations to enforce it, and then say 
those regulations are sacred even though the small business community 
had no input. Congress goes home, beats itself on the chest, gives 
itself the good government award and says, ``Well, we passed a law, we 
thought it would be OK.'' But nobody rode herd on the regulators.
  So here there are 1,000 regulations out there and they are saying, 
``We will impose these on you and you do not have the right to 
appeal.'' That is downright un-American. I do not care what anybody 

  I do not think I have ever voted to disallow judicial review. So here 
is a chance to say to the small business community, we have heard your 
complaints, we are doing everything we can, not only to lighten the 
regulatory burden but make the regulators pay if they unfairly and 
arbitrarily abuse you with their regulations.
  Let me just repeat one thing. It is a real tragedy. This bill has 
nothing to do with this giant so-called Dole-Johnston or Johnston-Dole 
regulatory reform bill. I will tell you something else. I do not want 
it part of that bill. I do not want somebody trying to attach this bill 
to that bill as an amendment. I want to pass this bill and say to the 
small business community: Here is something for you, whether this other 
mess ever passes or not.
  So, the minute the request of the distinguished Senator from Missouri 
to bring that bill up under the terms he requested, which are eminently 
reasonable--the minute that bill hits this floor and we spend an hour 
and a half debating it, it will be out of here 100-zip.
  We cast 23 votes this year. Last year at this time we cast over 90 
votes. In short, we are not doing anything, and, in addition to that, 
here we are with an opportunity to do something that really amounts to 
something and we cannot get that done.
  So the Senator from Missouri and I are going to persevere with this. 
We are going to get this bill passed one way or the other, because it 
makes too much sense not to.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.