Memorandum on Bill 12-458, the "Omnibus Regulatory Reform Amendment Act of 1997"
December 18, 1997, and
Letter to Councilmember Harold Brazil
December 15, 1997

MEMORANDUM

TO. All Councilmembers
FR: Tersh Boasberg, Chairman, and Phil Mendelson, Trustee
RE: Bill 12-458, the "Omnibus Regulatory Reform Amendment Act of 1997"

The Committee of 100 is appalled to have learned that First Reading on the omnibus regulatory reform bill -- all 13 titles of it -- is scheduled for tomorrow. To enable this, there will be a committee mark-up at 1 0:00am. As of 5:00pm the proposed committee print is not available.

We cannot state strongly enough how completely inappropriate it is for the Council to proceed on the entire bill, tomorrow, when no one has seen the print and there have been no hearings except by Councilmember Thomas on the Environmental Policy Act (Title 7). The proposition that it will be adequate for the public to comment on the engrossed version between Christmas Eve and New Year's is an insult.

This sudden legislative schedule bespeaks contempt for public participation. While there have been hearings on general issues of regulatory reform, it is a simple fact that there has been no forum on the specific legislative proposals now drafted. Much of it is new and different.

The committee chairman who is pushing so hard to steamroll this bill, wrote publicly only last Sunday that "The omnibus bill is a work in progress, with ample time and room for revision before its enactment." That was a lie. It invites disrespect on the Council as an institution.

The rush to act jeopardizes what little authority is left to local officials to effect true reform. Revising the law does not, in and of itself, mean improvement. Rather, it is the substance of the revisions that counts. To achieve this, foremost, there must be public scrutiny. Without a public hearing there will be little difference between the Council's approach and that of the Financial Control Board and Emergency School Board of Trustees: the vote may be public but the participation is not.

Regulatory reform is too complex for this. No value is gained in being hasty. No value is gained by waiving the rules and shutting out the public. No value is gained by abridging the deliberative process. There must be public bearings before Council action.

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December 15, 1997

The Hon. Harold Brazil, Chairman
Committee on Consumer & Regulatory Affairs
Council of the District of Columbia
441 4th Street, N.W. Room 701
Washington DC 20001

Dear Councilmember Brazil:

RE: Bill 12-458 (Regulatory Reform)

As I am writing, the proposed committee print of Bill 12-458, the 'Omnibus Regulatory Reform Amendment Act of 1997," is still unavailable even though mark-up of the bill is planned for today. The Committee of 100 on the Federal City reiterates its request that this bill not be marked-up today, and that there be public hearings before any mark-up.

Further, your Friday afternoon memo seeking a waiver of Council rules so that the bill may be considered on first reading by the Council tomorrow, flies in the face of your article in yesterday's Washington Post that "The omnibus bill is a work in progress, with ample time and room for revision before its enactment."

Bill 12-4S8 seeks to revise a very complex web of legislation. It took almost two months just to draft the bill, even after the Business Regulatory Reform Commission had made its recommendations. Yet there have been only 12 business days since the 120-page bill was introduced -- not even enough time for staff to prepare a proposed committee print let alone give adequate public notice.

Although there were hearings in the fall on general issues of regulatory reform, it is imperative that the public now be allowed to comment on the specific legislative proposals as drafted. The draft serves to focus debate -- on the proposals included, issues omitted, and on unintended consequences. Indeed, there is much that is new in Bill 12-458 and, contrary to your December 12th memo, these new proposals have not been the subject of any public comment.

For instance, Title I ("Business Licensing") would not only create two license categories where there are now 129, but it would:

• abolish restrictions on massage establishments;
• repeal all qualification requirements for taxicab drivers and other operators of vehicles for hire;
• remove various consumer protections such as those governing door-to-door salesmen,
• reduce the government's ability to stop second hand dealers fencing stolen goods; and
• eliminate numerous other requirements contained in the general license law that pertain to specific types of businesses and that are designed to protect the public.

Although your article in yesterday's Washington Post states that the bill would "abolish dozens of defunct boards and commissions," Title III ("Board and Commissions") fails to delete the statutory authority of any of the 44 boards and commissions identified by the Business Regulatory Reform Commission as being defunct Moreover, it proposes to abolish only some of the functioning boards recommended for elimination, and it does nothing whatsoever about merging another 39 boards as recommended by the BRRC. Of greatest concern to the Committee of 100, however, is the bill's provision to abolish the Board for the Condemnation of Insanitary Buildings, which is contrary to the BRRC's recommendations. These variations and new proposals must be subjected to public comment.

Title Ill would also change the appointment process for boards and commissions. There is no public awareness of this: that all appointments would require Council review even where confirmation is not now required. Without a public hearing to discuss this, we cannot understand how this proposal expedites the regulatory functions of government.

We are especially troubled that the approach to building and land regulation (Title IV) is to set up yet another task force; the proposals for change are well known already. And it is disappointing that there is a clear orientation toward the development community dominating the task force, with no acknowledgment of planning professionals or the qualification of numerous citizens with regard to zoning and land use. These proposals, too, have not been submitted to the public for comment.

Further about Title IV, the Committee of 100 remains opposed to the proposed changes to the Historic Landmark and Historic District Protection Act of 1978. We do not see how adding contested case requirements to HPRB proceedings facilitates the expeditious handling of cases under this law' although we are open to reconsidering our position after hearing public testimony. And the Committee of 100 opposes the idea of effecting street closings by resolution when time after time legislated conditions have been necessary.

The inclusion of Title Vll ("Environmental Regulation") not only provokes opposition to the bill but does nothing -- nothing at all -- for the small businesses throughout the city struggling to survive. The District's environmental policy act applies only to large, usually speculative projects and, as you know, provides for exemptions. Indeed, during the eight years in which the law has been in effect, only one EIS has been prepared, for the proposed Georgetown Cogenerator.

On this single, unnecessary section of the bill there will be a public hearing. However, you have announced mark-up prior to that. The hearing would be an excellent opportunity to obtain, finally, an explanation of how DCEPA is `'duplicative of other federal and District laws" and of how a typical EIS could cost $350,000. Mark-up must wait.

There are other provisions of the bill (e.g., repeal of the Franchising Act of 1988, intended to protect what are essentially small businesses, and the proposed new regulation of fraternal benefit societies) which also were not part of the Business Regulatory Reform Commission's report. In short, there is much that is new in Bill 12-458, contrary to the December 12th waiver request, and that necessitates public hearing.

When the Committee of 100 testified September 29th on the BRRC report, we concluded that:

"The four most important reforms you can implement are (1) consolidate the location of all permit approval offices; (2) automate the regulatory process with an integrated interagency and intra-agency system; (3) adequately fund the government's regulatory offices; and (4) strengthen enforcement. These four reforms dwarf all the others made by the Regulatory Reform Commission."

Our conclusion was consonant with the BRRC's own findings. Unfortunately, though, Bill 12-458 largely ignores these critical needs. The bill fails to mandate any relocation of offices; it fails to mandate any technology upgrades or even require planning for them; it fails to fund any aspect of the regulatory process -- especially with regard to inspection/enforcement/adjudication -- except the licensing process itself; and it fails to offer any reforms to strengthen enforcement.

With regard to enforcement, the DCRA Office of Compliance has asked for authority to issue civil infraction notices for unlicensed activities, to cancel certificates of occupancy where there is a clear violation, to close a business operating without a certificate of occupancy, and to increase the deterrent value of fines. Meaningful enforcement is essential, and provisions like these must be added to the bill.

The effort to rush Bill 12-458 without public hearing or regard for public comment lowers the esteem of the Council. Regulatory reform is too complex for this; no value is gained by abridging the deliberative process. No value is gained by racing to beat the Financial Control Board on this issue. We will be just as critical if the Control Board seeks to impose "reform," as you fear next month, by fiat.

In conclusion, the Committee of 100: (1) opposes mark-up of Bill 12-458 on December 15th; (2) urges public hearing on Bill 12-458 before mark-up; and (3) supports consideration of the bill's components as referred to the different committees.

Sincerely,
Phil Mendelson
Trustee

cc: All Councilmembers