House Report 112-278, Part 1 - 112th Congress (2011-2012)
November 10, 2011, As Reported by the Judiciary Committee

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House Report 112-278 - REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2011




[House Report 112-278]
[From the U.S. Government Printing Office]


112th Congress                                            Rept. 112-278
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
     REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2011

                                _______
                                

               November 10, 2011.--Ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                         [To accompany H.R. 10]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 10) to amend chapter 8 of title 5, United States 
Code, to provide that major rules of the executive branch shall 
have no force or effect unless a joint resolution of approval 
is enacted into law, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     7
Background and Need for the Legislation..........................     7
Hearings.........................................................    16
Committee Consideration..........................................    16
Committee Votes..................................................    16
Committee Oversight Findings.....................................    21
New Budget Authority and Tax Expenditures........................    22
Congressional Budget Office Cost Estimate........................    22
Performance Goals and Objectives.................................    26
Advisory on Earmarks.............................................    26
Section-by-Section Analysis......................................    26
Changes in Existing Law Made by the Bill, as Reported............    27
Dissenting Views.................................................    40

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Regulations From the Executive in Need 
of Scrutiny Act of 2011''.

SEC. 2. PURPOSE.

  The purpose of this Act is to increase accountability for and 
transparency in the federal regulatory process. Section 1 of article I 
of the United States Constitution grants all legislative powers to 
Congress. Over time, Congress has excessively delegated its 
constitutional charge while failing to conduct appropriate oversight 
and retain accountability for the content of the laws it passes. By 
requiring a vote in Congress, the REINS Act will result in more 
carefully drafted and detailed legislation, an improved regulatory 
process, and a legislative branch that is truly accountable to the 
American people for the laws imposed upon them.

SEC. 3. CONGRESSIONAL REVIEW OF AGENCY RULEMAKING.

  Chapter 8 of title 5, United States Code, is amended to read as 
follows:

         ``CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

``Sec.
``801. Congressional review.
``802. Congressional approval procedure for major rules.
``803. Congressional disapproval procedure for nonmajor rules.
``804. Definitions.
``805. Judicial review.
``806. Exemption for monetary policy.
``807. Effective date of certain rules.

``Sec. 801. Congressional review

  ``(a)(1)(A) Before a rule may take effect, the Federal agency 
promulgating such rule shall submit to each House of the Congress and 
to the Comptroller General a report containing--
          ``(i) a copy of the rule;
          ``(ii) a concise general statement relating to the rule;
          ``(iii) a classification of the rule as a major or nonmajor 
        rule, including an explanation of the classification 
        specifically addressing each criteria for a major rule 
        contained within sections 804(2)(A), 804(2)(B), and 804(2)(C);
          ``(iv) a list of any other related regulatory actions 
        intended to implement the same statutory provision or 
        regulatory objective as well as the individual and aggregate 
        economic effects of those actions; and
          ``(v) the proposed effective date of the rule.
  ``(B) On the date of the submission of the report under subparagraph 
(A), the Federal agency promulgating the rule shall submit to the 
Comptroller General and make available to each House of Congress--
          ``(i) a complete copy of the cost-benefit analysis of the 
        rule, if any;
          ``(ii) the agency's actions pursuant to sections 603, 604, 
        605, 607, and 609 of this title;
          ``(iii) the agency's actions pursuant to sections 202, 203, 
        204, and 205 of the Unfunded Mandates Reform Act of 1995; and
          ``(iv) any other relevant information or requirements under 
        any other Act and any relevant Executive orders.
  ``(C) Upon receipt of a report submitted under subparagraph (A), each 
House shall provide copies of the report to the chairman and ranking 
member of each standing committee with jurisdiction under the rules of 
the House of Representatives or the Senate to report a bill to amend 
the provision of law under which the rule is issued.
  ``(2)(A) The Comptroller General shall provide a report on each major 
rule to the committees of jurisdiction by the end of 15 calendar days 
after the submission or publication date as provided in section 
802(b)(2). The report of the Comptroller General shall include an 
assessment of the agency's compliance with procedural steps required by 
paragraph (1)(B).
  ``(B) Federal agencies shall cooperate with the Comptroller General 
by providing information relevant to the Comptroller General's report 
under subparagraph (A).
  ``(3) A major rule relating to a report submitted under paragraph (1) 
shall take effect upon enactment of a joint resolution of approval 
described in section 802 or as provided for in the rule following 
enactment of a joint resolution of approval described in section 802, 
whichever is later.
  ``(4) A nonmajor rule shall take effect as provided by section 803 
after submission to Congress under paragraph (1).
  ``(5) If a joint resolution of approval relating to a major rule is 
not enacted within the period provided in subsection (b)(2), then a 
joint resolution of approval relating to the same rule may not be 
considered under this chapter in the same Congress by either the House 
of Representatives or the Senate.
  ``(b)(1) A major rule shall not take effect unless the Congress 
enacts a joint resolution of approval described under section 802.
  ``(2) If a joint resolution described in subsection (a) is not 
enacted into law by the end of 70 session days or legislative days, as 
applicable, beginning on the date on which the report referred to in 
section 801(a)(1)(A) is received by Congress (excluding days either 
House of Congress is adjourned for more than 3 days during a session of 
Congress), then the rule described in that resolution shall be deemed 
not to be approved and such rule shall not take effect.
  ``(c)(1) Notwithstanding any other provision of this section (except 
subject to paragraph (3)), a major rule may take effect for one 90-
calendar-day period if the President makes a determination under 
paragraph (2) and submits written notice of such determination to the 
Congress.
  ``(2) Paragraph (1) applies to a determination made by the President 
by Executive order that the major rule should take effect because such 
rule is--
          ``(A) necessary because of an imminent threat to health or 
        safety or other emergency;
          ``(B) necessary for the enforcement of criminal laws;
          ``(C) necessary for national security; or
          ``(D) issued pursuant to any statute implementing an 
        international trade agreement.
  ``(3) An exercise by the President of the authority under this 
subsection shall have no effect on the procedures under section 802.
  ``(d)(1) In addition to the opportunity for review otherwise provided 
under this chapter, in the case of any rule for which a report was 
submitted in accordance with subsection (a)(1)(A) during the period 
beginning on the date occurring--
          ``(A) in the case of the Senate, 60 session days, or
          ``(B) in the case of the House of Representatives, 60 
        legislative days,
before the date the Congress is scheduled to adjourn a session of 
Congress through the date on which the same or succeeding Congress 
first convenes its next session, sections 802 and 803 shall apply to 
such rule in the succeeding session of Congress.
  ``(2)(A) In applying sections 802 and 803 for purposes of such 
additional review, a rule described under paragraph (1) shall be 
treated as though--
          ``(i) such rule were published in the Federal Register on--
                  ``(I) in the case of the Senate, the 15th session 
                day, or
                  ``(II) in the case of the House of Representatives, 
                the 15th legislative day,
        after the succeeding session of Congress first convenes; and
          ``(ii) a report on such rule were submitted to Congress under 
        subsection (a)(1) on such date.
  ``(B) Nothing in this paragraph shall be construed to affect the 
requirement under subsection (a)(1) that a report shall be submitted to 
Congress before a rule can take effect.
  ``(3) A rule described under paragraph (1) shall take effect as 
otherwise provided by law (including other subsections of this 
section).

``Sec. 802. Congressional approval procedure for major rules

  ``(a) For purposes of this section, the term `joint resolution' means 
only a joint resolution introduced on or after the date on which the 
report referred to in section 801(a)(1)(A) is received by Congress 
(excluding days either House of Congress is adjourned for more than 3 
days during a session of Congress), the matter after the resolving 
clause of which is as follows: `That Congress approves the rule 
submitted by the _ _ relating to _ _.' (The blank spaces being 
appropriately filled in).
          ``(1) In the House, the majority leader of the House of 
        Representatives (or his designee) and the minority leader of 
        the House of Representatives (or his designee) shall introduce 
        such joint resolution described in subsection (a) (by request), 
        within 3 legislative days after Congress receives the report 
        referred to in section 801(a)(1)(A).
          ``(2) In the Senate, the majority leader of the Senate (or 
        his designee) and the minority leader of the Senate (or his 
        designee) shall introduce such joint resolution described in 
        subsection (a) (by request), within 3 session days after 
        Congress receives the report referred to in section 
        801(a)(1)(A).
  ``(b)(1) A joint resolution described in subsection (a) shall be 
referred to the committees in each House of Congress with jurisdiction 
under the rules of the House of Representatives or the Senate to report 
a bill to amend the provision of law under which the rule is issued.
  ``(2) For purposes of this section, the term `submission date' means 
the date on which the Congress receives the report submitted under 
section 801(a)(1).
  ``(c) In the Senate, if the committee or committees to which a joint 
resolution described in subsection (a) has been referred have not 
reported it at the end of 15 session days after its introduction, such 
committee or committees shall be automatically discharged from further 
consideration of the resolution and it shall be placed on the calendar. 
A vote on final passage of the resolution shall be taken on or before 
the close of the 15th session day after the resolution is reported by 
the committee or committees to which it was referred, or after such 
committee or committees have been discharged from further consideration 
of the resolution.
  ``(d)(1) In the Senate, when the committee or committees to which a 
joint resolution is referred have reported, or when a committee or 
committees are discharged (under subsection (c)) from further 
consideration of a joint resolution described in subsection (a), it is 
at any time thereafter in order (even though a previous motion to the 
same effect has been disagreed to) for a motion to proceed to the 
consideration of the joint resolution, and all points of order against 
the joint resolution (and against consideration of the joint 
resolution) are waived. The motion is not subject to amendment, or to a 
motion to postpone, or to a motion to proceed to the consideration of 
other business. A motion to reconsider the vote by which the motion is 
agreed to or disagreed to shall not be in order. If a motion to proceed 
to the consideration of the joint resolution is agreed to, the joint 
resolution shall remain the unfinished business of the Senate until 
disposed of.
  ``(2) In the Senate, debate on the joint resolution, and on all 
debatable motions and appeals in connection therewith, shall be limited 
to not more than 2 hours, which shall be divided equally between those 
favoring and those opposing the joint resolution. A motion to further 
limit debate is in order and not debatable. An amendment to, or a 
motion to postpone, or a motion to proceed to the consideration of 
other business, or a motion to recommit the joint resolution is not in 
order.
  ``(3) In the Senate, immediately following the conclusion of the 
debate on a joint resolution described in subsection (a), and a single 
quorum call at the conclusion of the debate if requested in accordance 
with the rules of the Senate, the vote on final passage of the joint 
resolution shall occur.
  ``(4) Appeals from the decisions of the Chair relating to the 
application of the rules of the Senate to the procedure relating to a 
joint resolution described in subsection (a) shall be decided without 
debate.
  ``(e)(1) In the House of Representatives, if the committee or 
committees to which a joint resolution described in subsection (a) has 
been referred have not reported it at the end of 15 legislative days 
after its introduction, such committee or committees shall be 
automatically discharged from further consideration of the resolution 
and it shall be placed on the appropriate calendar. A vote on final 
passage of the resolution shall be taken on or before the close of the 
15th legislative day after the resolution is reported by the committee 
or committees to which it was referred, or after such committee or 
committees have been discharged from further consideration of the 
resolution.
  ``(2)(A) A motion in the House of Representatives to proceed to the 
consideration of a resolution shall be privileged and not debatable. An 
amendment to the motion shall not be in order, nor shall it be in order 
to move to reconsider the vote by which the motion is agreed to or 
disagreed to.
  ``(B) Debate in the House of Representatives on a resolution shall be 
limited to not more than two hours, which shall be divided equally 
between those favoring and those opposing the resolution. A motion to 
further limit debate shall not be debatable. No amendment to, or motion 
to recommit, the resolution shall be in order. It shall not be in order 
to reconsider the vote by which a resolution is agreed to or disagreed 
to.
  ``(C) Motions to postpone, made in the House of Representatives with 
respect to the consideration of a resolution, and motions to proceed to 
the consideration of other business, shall be decided without debate.
  ``(D) All appeals from the decisions of the Chair relating to the 
application of the Rules of the House of Representatives to the 
procedure relating to a resolution shall be decided without debate.
  ``(f) If, before the passage by one House of a joint resolution of 
that House described in subsection (a), that House receives from the 
other House a joint resolution described in subsection (a), then the 
following procedures shall apply with respect to a joint resolution 
described in subsection (a) of the House receiving the joint 
resolution--
          ``(1) the procedure in that House shall be the same as if no 
        joint resolution had been received from the other House; but
          ``(2) the vote on final passage shall be on the joint 
        resolution of the other House.
  ``(g) This section and section 803 are enacted by Congress--
          ``(1) as an exercise of the rulemaking power of the Senate 
        and House of Representatives, respectively, and as such it is 
        deemed a part of the rules of each House, respectively, but 
        applicable only with respect to the procedure to be followed in 
        that House in the case of a joint resolution described in 
        subsection (a), and it supersedes other rules only to the 
        extent that it is inconsistent with such rules; and
          ``(2) with full recognition of the constitutional right of 
        either House to change the rules (so far as relating to the 
        procedure of that House) at any time, in the same manner, and 
        to the same extent as in the case of any other rule of that 
        House.

``Sec. 803. Congressional disapproval procedure for nonmajor rules

  ``(a) For purposes of this section, the term `joint resolution' means 
only a joint resolution introduced in the period beginning on the date 
on which the report referred to in section 801(a)(1)(A) is received by 
Congress and ending 60 days thereafter (excluding days either House of 
Congress is adjourned for more than 3 days during a session of 
Congress), the matter after the resolving clause of which is as 
follows: `That Congress disapproves the nonmajor rule submitted by the 
_ _ relating to _ _, and such rule shall have no force or effect.' (The 
blank spaces being appropriately filled in).
  ``(b)(1) A joint resolution described in subsection (a) shall be 
referred to the committees in each House of Congress with jurisdiction.
  ``(2) For purposes of this section, the term submission or 
publication date means the later of the date on which--
          ``(A) the Congress receives the report submitted under 
        section 801(a)(1); or
          ``(B) the nonmajor rule is published in the Federal Register, 
        if so published.
  ``(c) In the Senate, if the committee to which is referred a joint 
resolution described in subsection (a) has not reported such joint 
resolution (or an identical joint resolution) at the end of 15 session 
days after the date of introduction of the joint resolution, such 
committee may be discharged from further consideration of such joint 
resolution upon a petition supported in writing by 30 Members of the 
Senate, and such joint resolution shall be placed on the calendar.
  ``(d)(1) In the Senate, when the committee to which a joint 
resolution is referred has reported, or when a committee is discharged 
(under subsection (c)) from further consideration of a joint resolution 
described in subsection (a), it is at any time thereafter in order 
(even though a previous motion to the same effect has been disagreed 
to) for a motion to proceed to the consideration of the joint 
resolution, and all points of order against the joint resolution (and 
against consideration of the joint resolution) are waived. The motion 
is not subject to amendment, or to a motion to postpone, or to a motion 
to proceed to the consideration of other business. A motion to 
reconsider the vote by which the motion is agreed to or disagreed to 
shall not be in order. If a motion to proceed to the consideration of 
the joint resolution is agreed to, the joint resolution shall remain 
the unfinished business of the Senate until disposed of.
  ``(2) In the Senate, debate on the joint resolution, and on all 
debatable motions and appeals in connection therewith, shall be limited 
to not more than 10 hours, which shall be divided equally between those 
favoring and those opposing the joint resolution. A motion to further 
limit debate is in order and not debatable. An amendment to, or a 
motion to postpone, or a motion to proceed to the consideration of 
other business, or a motion to recommit the joint resolution is not in 
order.
  ``(3) In the Senate, immediately following the conclusion of the 
debate on a joint resolution described in subsection (a), and a single 
quorum call at the conclusion of the debate if requested in accordance 
with the rules of the Senate, the vote on final passage of the joint 
resolution shall occur.
  ``(4) Appeals from the decisions of the Chair relating to the 
application of the rules of the Senate to the procedure relating to a 
joint resolution described in subsection (a) shall be decided without 
debate.
  ``(e) In the Senate the procedure specified in subsection (c) or (d) 
shall not apply to the consideration of a joint resolution respecting a 
nonmajor rule--
          ``(1) after the expiration of the 60 session days beginning 
        with the applicable submission or publication date, or
          ``(2) if the report under section 801(a)(1)(A) was submitted 
        during the period referred to in section 801(d)(1), after the 
        expiration of the 60 session days beginning on the 15th session 
        day after the succeeding session of Congress first convenes.
  ``(f) If, before the passage by one House of a joint resolution of 
that House described in subsection (a), that House receives from the 
other House a joint resolution described in subsection (a), then the 
following procedures shall apply:
          ``(1) The joint resolution of the other House shall not be 
        referred to a committee.
          ``(2) With respect to a joint resolution described in 
        subsection (a) of the House receiving the joint resolution--
                  ``(A) the procedure in that House shall be the same 
                as if no joint resolution had been received from the 
                other House; but
                  ``(B) the vote on final passage shall be on the joint 
                resolution of the other House.

``Sec. 804. Definitions

  ``For purposes of this chapter--
          ``(1) The term `Federal agency' means any agency as that term 
        is defined in section 551(1).
          ``(2) The term `major rule' means any rule, including an 
        interim final rule, that the Administrator of the Office of 
        Information and Regulatory Affairs of the Office of Management 
        and Budget finds has resulted in or is likely to result in--
                  ``(A) an annual effect on the economy of $100,000,000 
                or more;
                  ``(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, State, or 
                local government agencies, or geographic regions; or
                  ``(C) significant adverse effects on competition, 
                employment, investment, productivity, innovation, or on 
                the ability of United States-based enterprises to 
                compete with foreign-based enterprises in domestic and 
                export markets.
          ``(3) The term `nonmajor rule' means any rule that is not a 
        major rule.
          ``(4) The term `rule' has the meaning given such term in 
        section 551, except that such term does not include--
                  ``(A) any rule of particular applicability, including 
                a rule that approves or prescribes for the future 
                rates, wages, prices, services, or allowances 
                therefore, corporate or financial structures, 
                reorganizations, mergers, or acquisitions thereof, or 
                accounting practices or disclosures bearing on any of 
                the foregoing;
                  ``(B) any rule relating to agency management or 
                personnel; or
                  ``(C) any rule of agency organization, procedure, or 
                practice that does not substantially affect the rights 
                or obligations of non-agency parties.

``Sec. 805. Judicial review

  ``(a) No determination, finding, action, or omission under this 
chapter shall be subject to judicial review.
  ``(b) Notwithstanding subsection (a), a court may determine whether a 
Federal agency has completed the necessary requirements under this 
chapter for a rule to take effect.
  ``(c) The enactment of a joint resolution of approval under section 
802 shall not be interpreted to serve as a grant or modification of 
statutory authority by Congress for the promulgation of a rule, shall 
not extinguish or affect any claim, whether substantive or procedural, 
against any alleged defect in a rule, and shall not form part of the 
record before the court in any judicial proceeding concerning a rule 
except for purposes of determining whether or not the rule is in 
effect.

``Sec. 806. Exemption for monetary policy

  ``Nothing in this chapter shall apply to rules that concern monetary 
policy proposed or implemented by the Board of Governors of the Federal 
Reserve System or the Federal Open Market Committee.

``Sec. 807. Effective date of certain rules

  ``Notwithstanding section 801--
          ``(1) any rule that establishes, modifies, opens, closes, or 
        conducts a regulatory program for a commercial, recreational, 
        or subsistence activity related to hunting, fishing, or 
        camping; or
          ``(2) any rule other than a major rule which an agency for 
        good cause finds (and incorporates the finding and a brief 
        statement of reasons therefore in the rule issued) that notice 
        and public procedure thereon are impracticable, unnecessary, or 
        contrary to the public interest,
shall take effect at such time as the Federal agency promulgating the 
rule determines.''.

                          Purpose and Summary

    H.R. 10, the ``Regulations From the Executive in Need of 
Scrutiny Act of 2011,'' also known as the REINS Act, reforms 
the Congressional Review Act of 1996\1\ (``CRA''). The CRA was 
adopted to increase accountability of regulatory agencies by 
creating a fast-track legislative process for Congress to 
overturn a final rule within 60 days of the rule's publication 
in the Federal Register. But in the 15 years since it was 
adopted, Federal regulatory agencies have issued nearly 59,000 
rules, including some 1,050 major rules, while Congress has 
overturned only one rule using the CRA. Further, the number of 
major rules has increased markedly in recent years, and this 
trend shows no signs of abating. The REINS Act reforms the CRA 
only insofar as the CRA applies to major rules. The REINS Act 
would require Congress to pass within 60 days, and the 
President to sign, a joint resolution approving new major rules 
issued by a regulatory agency before that rule could take 
effect.
---------------------------------------------------------------------------
    \1\See Contract with America Advancement Act of 1996, H.R. 3136, 
104th Cong., Sec. 251 (1996) (enacted as 104 P.L. 121, codified at 5 
U.S.C. Sec. Sec. 801-808).
---------------------------------------------------------------------------

                Background and Need for the Legislation

                            I. INTRODUCTION

    H.R. 10, the ``Regulations From the Executive in Need of 
Scrutiny Act of 2011'' (``REINS Act'' or ``the bill''), was 
introduced on January 20, 2011, by Representative Geoff Davis 
of Kentucky. The bill currently has 192 cosponsors. Its Senate 
companion is S.299.
    In the 111th Congress, Rep. Davis introduced the 
``Regulations From the Executive in Need of Scrutiny Act of 
2009,'' H.R. 3765, which was referred to the Committee on the 
Judiciary and to the Subcommittee on Commercial and 
Administrative Law. Similar legislation had been introduced in 
previous Congresses.\2\ The REINS Act garnered substantial 
support in the 111th Congress. CRA reform also was discussed in 
the Commercial and Administrative Law Subcommittee's 
Administrative Law, Process and Procedure Project for the 21st 
Century during the 108th and 109th Congresses. The first 
recommendation for CRA reform noted in this report was to 
require congressional approval of agency rules before the rules 
could become effective.\3\ Various administrative law scholars 
also have suggested requiring Congressional approval of new 
agency regulations.\4\
---------------------------------------------------------------------------
    \2\See, e.g., Congressional Responsibility Act of 2003, H.R. 110, 
108th Cong.; Congressional Regulatory Reform Act of 2000, S.2670, 106th 
Cong.; Congressional Responsibility Act of 1999, S.1348, 106th Cong.
    \3\House Judiciary Committee, Subcommittee on Commercial and 
Administrative Law, Interim Report on the Administrative Law, Process 
and Procedure Project for the 21st Century, Comm. Print No. 10 (Dec. 
2006) at 104.
    \4\See, e.g., Morton Rosenberg, Whatever Happened to Congressional 
Review of Agency Rulemaking?: A Brief Overview, Assessment, and 
Proposal for Reform, 51 Admin. L. Rev. 1051, 1083-84 (``The CRA is not 
working. . . . Agency lawmaking as a surrogate for the Congress is, and 
should be, political in nature and is openly recognized and treated as 
such. . . . All covered rules should be subject to approval by the 
Congress on an expedited basis, with rules deemed significant receiving 
more intensive scrutiny and floor deliberation.'') (Fall 1999); Paul R. 
Verkuil, Comment: Rulemaking Ossification--A Modest Proposal, 47 Admin. 
L. Rev. 453, 457 (Summer 1995) (Proposing ``to have major rules--those 
that are subject to ossification--come back to Congress on a fast-track 
basis to be enacted into statutes.''); Stephen Breyer, The Legislative 
Veto After Chadha, 72 Geo. L.J. 785, 794 (Feb. 1984) (``In its main 
features then, the substitute fast track approach closely resembles the 
legislative veto. . . . The method by which this is done, however, is 
different from that followed by the traditional legislative veto; the 
Constitution's language is followed as a matter of form. Thus, whatever 
legal questions might arise, they should not be the same as those at 
issue in Chadha.''); see also Hon. Abner J. Mivka, The Changing Role of 
Judicial Review, 38 Admin. L. Rev. 115, 120 (Spring 1986) (Citing then-
Judge Breyer: ``[T]he fast track is a reasonable facsimile of the one-
House veto that complies with the principles of bicameralism and 
presentment.''); Girardeau A. Spann, Spinning the Legislative Veto, 72 
Geo. L.J. 813, 816 (1984) (``Judge Breyer's fast-track alternative is 
appealing because it closely approximates the political compromise that 
is struck by the legislative veto.'').
---------------------------------------------------------------------------
    The Subcommittee on Courts, Commercial and Administrative 
Law heard testimony from six witnesses during two hearings on 
the REINS Act. On January 24, 2011, the Subcommittee heard 
testimony from the Honorable David McIntosh, former Member of 
Congress (1995-2001) and partner at Mayer Brown LLP; Professor 
Jonathan Adler, Case Western Reserve University School of Law 
and Director, Center for Business Law and Regulation; and, the 
Honorable Sally Katzen, Visiting Professor, New York University 
School of Law and former Administrator of the Office of 
Information and Regulatory Affairs (1993-1998).\5\ On March 8 
the Subcommittee received testimony from Professor David 
Schoenbrod, New York Law School and Visiting Scholar, American 
Enterprise Institute; Professor Eric R. Claeys, George Mason 
University School of Law; and, Mr. David Goldston, Director of 
Government Affairs, Natural Resources Defense Council.\6\
---------------------------------------------------------------------------
    \5\REINS Act--Promoting Jobs and Expanding Freedom by Reducing 
Needless Regulations: Hearing Before the House Committee on the 
Judiciary, Subcommittee on Courts, Commercial and Administrative Law, 
112th Cong. (Jan. 24, 2011).
    \6\Regulations From the Executive in Need of Scrutiny Act of 2011: 
Hearing Before the House Committee on the Judiciary, Subcommittee on 
Courts, Commercial and Administrative Law, 112th Cong. (Mar. 8, 2011).
---------------------------------------------------------------------------

              II. BACKGROUND AND NEED FOR THE LEGISLATION

    The REINS Act is the latest chapter in Congress' struggle 
to hold regulatory agencies accountable to the public. ``As 
early as the 1930's, Members of Congress worried that wide 
delegations of administrative authority would leave the 
unelected bureaucracy politically unaccountable. Yet they also 
realized that Congress could not pass enough specific 
legislation to regulate the increasingly complex world. The 
legislative veto was seen as a partial solution to this 
dilemma.''\7\
---------------------------------------------------------------------------
    \7\Note: The Mysteries of the Congressional Review Act, 122 Harv. 
L. Rev. 2162, 2164 (June 2009) (citations omitted).
---------------------------------------------------------------------------
A. The legislative veto and INS v. Chadha
    A legislative veto reserved to Congress the unilateral 
power to nullify an exercise of executive authority. 
``Apparently, the first time Congress enacted a veto clause was 
in 1932 when it gave President Hoover the authority to 
reorganize executive departments subject to a one-House 
veto.''\8\ Some form of a legislative veto subsequently 
appeared in some 200 statutes.\9\ Eventually, however, the 
Supreme Court ruled the unicameral legislative veto 
unconstitutional in the case of INS v. Chadha, 462 U.S. 919 
(1983). In doing so, ``the Supreme Court invalidated more 
Federal statutes in a single day than it had in all of its 
prior history.''\10\
---------------------------------------------------------------------------
    \8\Breyer, note 4 supra, at 786.
    \9\Id. (citing Chadha, 462 U.S. at 968 (White, J., dissenting)); 
see also Senator James Abourezk, The Congressional Veto: A Contemporary 
Response to Executive Encroachment on Legislative Prerogatives, 52 Ind. 
L.J. 323, 324 (Winter 1977) (``Since 1932, when the first veto 
provision was enacted into law, 295 congressional veto-type provisions 
have been inserted into 196 different statutes. . . .'').
    \10\Girardeau A. Spann, Deconstructing the Legislative Veto, 68 
Minn. L. Rev. 473, 473 (Feb. 1984).
---------------------------------------------------------------------------
    Chadha involved an alien whom the INS ordered deported for 
overstaying his visa. The statute in question allowed the 
Attorney General to suspend Chadha's deportation, which he did, 
but also allowed the House of Representatives to veto the 
Attorney General's decision, which the House also did. The 
Supreme Court acknowledged that Congress has ``plenary 
authority'' over aliens,\11\ which Congress exercised in part 
by authorizing the INS to deport aliens and by authorizing the 
Attorney General to suspend an INS deportation order. The 
question was whether the Constitution permits Congress to 
reserve to the House alone the power to veto the Attorney 
General's decision.
---------------------------------------------------------------------------
    \11\462 U.S. at 940-41.
---------------------------------------------------------------------------
    The Court began its constitutional analysis by observing, 
``When any branch acts, it is presumptively exercising the 
power the Constitution has delegated to it. When the Executive 
acts, he presumptively acts in an executive or administrative 
capacity as defined in Article II. And when, as here, one House 
of Congress purports to act, it is presumptively acting within 
its assigned sphere.''\12\ The Supreme Court further recognized 
that, by passing a resolution overturning the Attorney 
General's decision to deport Chadha, the House had engaged in 
an act ``that was essentially legislative in purpose and 
effect,'' i.e., to reverse an act of the Executive Branch.\13\ 
The Supreme Court acknowledged that, instead of delegating part 
of its power to the Attorney General, Congress could have 
reserved the power to suspend deportation orders, through the 
private bill procedure.\14\ Or Congress could have passed 
legislation overturning the Attorney General's decision, and 
presented the same to the President for his signature or 
veto.\15\ Either way, Congress was required to follow the 
constitutional process for legislative action established by 
Article I, Section 7: bicameral passage of legislation and 
presentment to the President.\16\
---------------------------------------------------------------------------
    \12\Id. at 951-52.
    \13\Id. at 952.
    \14\Id. at 954-55 (``After long experience with the clumsy, time-
consuming private bill procedure, Congress made a deliberate choice to 
delegate to the Executive Branch, and specifically to the Attorney 
General, the authority to allow deportable aliens to remain in this 
country in certain specified circumstances. It is not disputed that 
this choice to delegate authority is precisely the kind of decision 
that can be implemented only in accordance with the procedures set out 
in Art. I. Disagreement with the Attorney General's decision on 
Chadha's deportation--that is, Congress' decision to deport Chadha--no 
less than Congress' original choice to delegate to the Attorney General 
the authority to make that decision, involves determinations of policy 
that Congress can implement in only one way; bicameral passage followed 
by presentment to the President. Congress must abide by its delegation 
of authority until that delegation is legislatively altered or 
revoked.'').
    \15\Cf. id. at 952-54 (``Neither the House of Representatives nor 
the Senate contends that, absent the veto provision in Sec. 244(c)(2), 
either of them, or both of them acting together, could effectively 
require the Attorney General to deport an alien once the Attorney 
General, in the exercise of legislatively delegated authority, had 
determined the alien should remain in the United States. Without the 
challenged provision in Sec. 244(c)(2), this could have been achieved, 
if at all, only by legislation requiring deportation.'').
    \16\Id. at 956-57 (``Since it is clear that the action by the House 
under Sec. 244(c)(2) was not within any of the express constitutional 
exceptions authorizing one House to act alone, and equally clear that 
it was an exercise of legislative power, that action was subject to the 
standards prescribed in Art. I. . . . To accomplish what has been 
attempted by one House of Congress in this case requires action in 
conformity with the express procedures of the Constitution's 
prescription for legislative action: passage by a majority of both 
Houses and presentment to the President.'').
---------------------------------------------------------------------------
    The unicameral legislative veto represented an attempt by 
Congress to hold regulatory agencies accountable, although the 
Court in Chadha held that it is an unconstitutional method of 
achieving this goal. In other words, under Chadha the goal of 
enabling Congress to overturn an agency decision is not 
unconstitutional, but the process by which Congress tried to 
achieve that goal--a single-chamber legislative veto, without 
presentment--was unconstitutional.
B. The Congressional Review Act of 1996
    One effect of Chadha was to ``to chill future attempts by 
Congress to interfere with autonomous creation of new rules by 
administrative agencies,'' and the 104th Congress certainly was 
``mindful'' of Chadha as it drafted the Congressional Review 
Act.\17\ ``The plain, overarching purpose of the CRA is to 
assure that all covered final rulemaking actions of agencies 
come before Congress for scrutiny and possible nullification 
through joint resolutions of disapproval.''\18\ Senators 
Nickels (R-OK), Reid (D-NV) and Stevens (R-AK) explained in 
their joint statement, summarizing the legislative history of 
the CRA,
---------------------------------------------------------------------------
    \17\James T. O'Reilly, EPA Rulemaking after the 104th Congress: 
Death from Four Near-Fatal Wounds?, 3 Envtl. Law. 1, 11-12 (Sept. 
1996); see also 142 Cong. Rec. E575 (daily ed. Apr. 19, 1996) (Joint 
Explanatory Statement of House Sponsors) (``In INS v. Chadha, 462 U.S. 
919 (1983), the Supreme Court struck down as unconstitutional any 
procedure where executive action could be overturned by less than the 
full process required under the Constitution to make laws--that is, 
approval by both houses of Congress and presentment to the 
President.''); 142 Cong. Rec. S3684 (daily ed. Apr. 18, 1996) (Joint 
Statement of Sens. Nickels, Reid and Stevens) (same).
    \18\Rosenberg, note 4 supra, at 1070 (citing 142 Cong. Rec. E575 
(daily ed. Apr. 19, 1996)) (Joint Explanatory Statement of House 
Sponsors) (``This legislation establishes a government-wide 
congressional review mechanism for most new rules. This allows Congress 
the opportunity to review a rule before it takes effect and to 
disapprove any rule to which Congress objects.'').

        As more and more of Congress' legislative functions 
        have been delegated to Federal regulatory agencies, 
        many have complained the Congress has effectively 
        abdicated its constitutional role as the national 
        legislature in allowing Federal agencies so much 
        latitude in implementing and interpreting congressional 
        enactments. . . . This legislation will help to redress 
        the balance, reclaiming for Congress some of its 
        policymaking authority, without at the same time 
        requiring Congress to become a super regulatory 
        agency.\19\
---------------------------------------------------------------------------
    \19\142 Cong. Rec. S3683 (daily ed. Apr. 18, 1996).

    The CRA requires agencies to file all new rules with 
Congress and with the GAO.\20\ For a major rule (e.g., one with 
an annual impact on the economy of $100 million or more), 
within 15 days the GAO is required to report to Congress on the 
agency's compliance with the various steps of the rulemaking 
process.\21\ Major rules are delayed from becoming effective 
for 60 days from the later of either the date they are 
published in the Federal Register or the date they are 
submitted to Congress and the GAO\22\; non-major rules are not 
delayed beyond the general 30-day delay established by the 
APA.\23\ For major and non-major rules, at any time during this 
60-day period Congress can nullify the rule by adopting a joint 
resolution drafted according to a textual formula established 
by the statute.\24\ The statute contains expedited procedures 
for the statute in the Senate, although not in the House.\25\ 
If Congress adjourns less than 60 days after a rule is 
submitted to it, then a new 60-day period begins on the 15th 
legislative day of the next session.\26\ If Congress adopts the 
resolution, then the rule is null and ``shall be treated as 
though such rule had never taken effect.''\27\ Moreover, the 
rule ``may not be reissued in substantially the same form'' by 
the agency.\28\ Certain rules are exempt from the CRA 
altogether, such as those ``necessary for national security'' 
and ``rules that concern monetary policy.''\29\
---------------------------------------------------------------------------
    \20\5 U.S.C. Sec. 801(a)(1).
    \21\Id. Sec. 801(a)(2).
    \22\Id. Sec. 801(a)(3).
    \23\Id. Sec. 801(a)(4); 5 U.S.C. Sec. 553(d).
    \24\Id. Sec. Sec. 801(b), 802(a).
    \25\Id. Sec. 802.
    \26\Id. Sec. 802(e).
    \27\Id. Sec. 801(f).
    \28\Id. Sec. 801(b)(2).
    \29\Id. Sec. Sec. 801(c), 807.
---------------------------------------------------------------------------
    Senator Levin (D-MI) was enthusiastic about the CRA's 
potential for Congress to hold regulatory agencies accountable: 
``No longer will we be able to tell our constituents who 
complain about regulations that do not make sense, `talk to the 
agency,' or `your only recourse is the courts.' Now we are in a 
position to do something ourselves.''\30\ Fifteen years of 
experience with the CRA, however, has not matched Senator 
Levin's high hopes for bringing regulatory agencies to heel. 
Since the CRA was enacted in March 1996, more than 58,900 new 
rules have been reported to GAO by regulatory agencies, 
including some 1,050 new major rules.\31\ But in that same time 
period, a scant 72 joint resolutions of disapproval have been 
introduced in the House and Senate, targeting 49 different 
rules.\32\ Of these 72 joint resolutions, only one was 
enacted.\33\ This single instance of the CRA being utilized by 
Congress may have been an anomaly, relating to a highly 
controversial workplace ergonomics rule issued by the 
Department of Labor in the final days of the Clinton 
Administration and overturned by the next Congress with the 
Bush Administration's support.\34\
---------------------------------------------------------------------------
    \30\142 Cong. Rec. S3123 (daily ed. Mar. 28, 1996); see also REINS 
Act, note 5 supra, at 68 (Jan. 24, 2011) (Testimony of David McIntosh) 
(``It often becomes impossible, amidst mutual accusations, to determine 
on whom the blame or the punishment of a pernicious measure, or series 
of pernicious measures, ought really to fall. It is shifted from one to 
another with so much dexterity, and under such plausible appearances, 
that the public opinion is left in suspense about the real author.'') 
(quoting The Federalist No. 70, at 517 (Alexander Hamilton) (Jacob E. 
Cooke ed., 1984)); Richard J. Pierce, Jr., Past and Prologue: 
Rulemaking and the Administrative Procedure Act, 32 Tulsa L.J. 185, 198 
(Winter 1996) (``With the addition of the [CRA], we now have in place 
two-thirds of a new legal environment that would combine our social 
values in a new way so as to maximize our ability to further those 
values simultaneously. We have had systematic Presidential review of 
major rules for over a dozen years. Beginning in 1996, Presidential 
review will coexist with systematic Congressional review. As a result, 
an agency can issue a major rule only if it survives review by both of 
the politically accountable branches of government. That process 
certainly should satisfy our desire for accountability of rules. We can 
hold the elected officials of both branches accountable for any rule 
that we dislike.'').
    \31\GAO Federal Rules Database Search, http://www.gao.gov/legal/
congressact/fedrule.html (last accessed Oct. 28, 2011).
    \32\Morton Rosenberg, The Congressional Review Act After 15 Years: 
Background and Considerations for Reform 10-11 (Draft Report Prepared 
for the Admin. Conf. of the United States, Sept. 16, 2011), available 
at http://www.acus.gov/wp-content/uploads/downloads/2011/09/COJR-Draft-
CRA-Report-9-16-11.pdf (last accessed Oct. 28, 2011).
    \33\See S.J. Res. 6, 107th Cong., 115 Stat. 7 (2001) (overturning 
65 Fed. Reg. 68261 (2000)).
    \34\See generally Julie A. Parks, Lessons in Politics: Initial Use 
of the Congressional Review Act, 55 Admin. L. Rev. 187 (Winter 2003).
---------------------------------------------------------------------------
    It stands to reason that a sitting president would veto a 
joint resolution of disapproval adopted against a new rule 
issued by his administration. Experience and common sense 
dictate that the CRA's utility may be limited to ``midnight 
regulations'' issued when both the incoming administration and 
both chambers of the incoming Congress are not of the same 
party as the outgoing administration, as occurred in 2000-
01.\35\ The CRA theoretically could be used when one party 
possesses veto-proof majorities in both chambers of Congress 
against a president belonging to another party, but apparently 
this never has occurred in American history and seems unlikely 
to come to pass in the foreseeable future. Speculation about 
the CRA's potential utility against rules issued by independent 
agencies, on the theory that a President would be less likely 
to veto such a joint resolution, is simply belied by 15 years 
of experience.\36\ Ultimately, it appears that the CRA largely 
has become, as two of its early critics predicted, ``nothing 
more than another procedural hurdle for an agency to jump, 
further increasing the costs and uncertainties of rulemaking, 
with little, if any, added benefit.''\37\ (It also may be a 
procedural hurdle that agencies regularly choose to bypass, by 
simply ignoring the CRA's requirement to submit new rules to 
Congress and to the GAO.\38\)
---------------------------------------------------------------------------
    \35\See Jerry Brito & Veronique de Rugy, Midnight Regulations and 
Regulatory Review, 61 Admin. L. Rev. 163, 190 (Winter 2009) (``However, 
the CRA will only be an effective check on midnight regulations if the 
incoming president and the Congress are of the same party. If not, 
there is little reason to expect that the Congress will use its 
authority under the CRA to repeal midnight regulations. Conversely, if 
the president is of the same party as his predecessor and the Congress 
is of the opposite party, it is likely that the new president will veto 
a congressional attempt to overturn his predecessor's last-minute 
rules. It should not be surprising that the CRA has only been used once 
to successfully repeal a regulation.'').
    \36\See Note, note 7 supra, at 2181.
    \37\Daniel Cohen & Peter L. Strauss, Congressional Review of Agency 
Rulemaking, 49 Admin. L. Rev. 95, 106 (Winter 1997).
    \38\See generally Sean D. Croston, Congress and the Courts Close 
Their Eyes: The Continuing Abdication of the Duty to Review Agencies 
Noncompliance with the Congressional Review Act, 62 Admin. L. Rev. 907 
(Fall 2010).
---------------------------------------------------------------------------
C. LThe overall regulatory burden on American taxpayers and job 
        creators, including the threat of future regulation, is 
        increasing
    The need for increased Congressional oversight also is 
apparent from the dramatic increase in Federal regulatory 
activity. Agencies are ever issuing more regulations, including 
major regulations that have a larger impact on the economy. 
According to former OIRA Administrator Susan E. Dudley,

        Over the first 2 years of President Obama's term, 
        executive branch agencies published 112 economically 
        significant regulations (defined as having impacts of 
        $100 million or more per year). That averages out to 56 
        major regulations per year, which is almost 25 percent 
        higher than President Clinton and President Bush, who 
        each published an average of 45 major regulations per 
        year over their terms. When one includes the 
        independent agencies (over which presidents exercise 
        less direct oversight) the contrast is greater, with an 
        average of 84 major regulations issued over the last 2 
        years, a 35 percent increase over the average of 62 per 
        year in the Bush Administration and a 50 percent 
        increase over the 56 per year average in the Clinton 
        Administration.\39\
---------------------------------------------------------------------------
    \39\Susan E. Dudley, ``Prospects for Regulatory Reform in 2011,'' 
ENGAGE 11:1, at 9 (June 2011).

    Further, President Obama's Spring 2011 Unified Agenda of 
Regulatory and Deregulatory Activity lists 144 major 
regulations, representing at least a $14 billion burden to the 
economy. ``This is an increase of 15.2 percent in the number of 
economically significant rules in the agenda between spring 
2010 and spring 2011. Moreover, in the past decade, the number 
of such rules has increased a whopping 102 percent, rising from 
71 to 144 since 2001.''\40\ The threat of a new wave of major 
regulations to implement the Patient Protection and Affordable 
Care Act\41\ and the Dodd-Frank Wall Street Reform and Consumer 
Protection Act\42\ is an added burden on the economy that 
threatens to undermine the economic recovery. Now more than 
ever, Congress--not unelected bureaucrats in regulatory 
agencies--should take responsibility for the difficult policy 
choices reflected in every new major rulemaking.
---------------------------------------------------------------------------
    \40\James L. Gattuso & Diane Katz, ``Red Tape Rising: A 2011 Mid-
Year Report on Regulation,'' Heritage Foundation (July 25, 2011), 
available at http://www.heritage.org/research/reports/2011/07/red-tape-
rising-a-2011-mid-year-report (last accessed Oct. 28, 2011).
    \41\111 P.L. 148 (Mar. 23, 2010). ``The health care law provides 
for the creation of nearly 160 boards, bureaus, bureaucracies, and 
commissions. . . . Overall, the Federal Government is expected to issue 
roughly 10,000 pages of new regulations to govern the implementation of 
the new law.'' ObamaCare: A Budget-Busting, Job-Killing Health Care 
Law, Jan. 6, 2011, at 7-8, available at http://www.speaker.gov/
UploadedFiles/ObamaCareReport.pdf (last accessed Oct. 28, 2011).
    \42\111 P.L. 203 (July 21, 2010). ``[T]he Dodd-Frank Act is the 
most farreaching financial regulatory undertaking since the 1930's, 
authorizing or requiring agencies to enact 447 new rules and complete 
63 reports and 59 studies.'' Michael J. Ryan, Jr., U.S. Capital Markets 
Competitiveness: The Unfinished Agenda, Summer 2011, at 3, available at 
https://www.uschamber.com/sites/default/files/reports/
1107_UnfinishedAgenda_WEB.pdf (last accessed Oct. 28, 2011).
---------------------------------------------------------------------------
D. LThe REINS Act is a constitutional and logical reform to the CRA
    The REINS Act would improve the CRA's effectiveness against 
excessive agency rulemaking by taking the logical next step 
beyond the CRA's current structure. That step is to require 
Congress to approve new major rules by joint resolution before 
they can become legally effective. In essence, the REINS Act 
operates as a new condition on the delegation of legislative 
rulemaking authority to the agencies, much as other statutes, 
such as the Administrative Procedure Act and the CRA itself, 
condition the delegation of that authority. With respect to 
major rules, Congress' delegation would, under the REINS Act, 
no longer include a delegation to the agencies of authority to 
place legislative rules into legal effect. Instead, that final 
step would be reserved to Congress to take through a bicameral 
resolution with presentment to the President. The REINS Act 
does not withdraw from the agencies the delegation of authority 
to place into effect new, non-major rules.
    The Subcommittee heard extensive testimony regarding the 
constitutionality of the REINS Act. Sally Katzen, former 
Administrator of the Office of Information and Regulatory 
Affairs (1993-1998), questioned the constitutionality of the 
REINS Act under Chadha. Specifically, Ms. Katzen suggests that 
the REINS Act cannot be distinguished easily from the one-house 
legislative veto overturned in Chadha: ``It may not be enough 
to say that H.R. 10 incorporates bi-cameral and presentment 
(the requirements for constitutionality in Chadha) because 
[under the REINS Act] one house alone would stop final agency 
action from becoming effective.''\43\ To the response that 
Congress is simply revoking previously delegated legislative 
power, Ms. Katzen suggests it may still be unconstitutional 
because it ``involve[s] an attempt by Congress to increase its 
power at the expense of the executive branch,'' quoting dicta 
in Morrison v. Olson, 487 U.S. 654, 694 (1988).\44\
---------------------------------------------------------------------------
    \43\REINS Act, note 5 supra, at 95 (Testimony of Sally Katzen).
    \44\Id. at 96.
---------------------------------------------------------------------------
    Professors Adler, Claeys and Schoenbrod, as well as former 
Representative McIntosh (a ``key sponsor''\45\ of the 
Congressional Review Act in the 104th Congress), each testified 
in support of the bill's constitutionality and rebutted this 
argument. Professor Adler observed that the REINS Act follows 
the constitutional requirements for bicameralism and 
presentment, which were fatal to the legislative veto in 
Chadha.\46\ In other words, the legislative veto in Chadha was 
overturned because of a defective process--Congress had tried 
to take a shortcut around Article I of the Constitution--and 
not because invalidating a new regulation is an impermissible 
outcome. If the REINS Act effectively allows Congress to 
accomplish the same goal as in Chadha, but follows the 
Constitution, then under Chadha it is not constitutionally 
suspect. Professor Adler further notes that the REINS Act is 
somewhat more limited than the historical legislative veto in 
that it only applies to major rules, of which there have been 
typically (although the number is increasing) fewer than 200 
every year.\47\
---------------------------------------------------------------------------
    \45\Rosenberg, note 4 supra, at 1072.
    \46\REINS Act, note 5 supra, at 84 (Testimony of Jonathan Adler).
    \47\Ibid.
---------------------------------------------------------------------------
    Professor Claeys responded to the suggestion that the REINS 
Act is constitutionally questionable per Morrison v. Olson, in 
which the Supreme Court upheld the independent counsel statute 
against a separation-of-powers constitutional challenge. As 
Professor Claeys testified,

        [A]gencies have no power to promulgate legislative 
        rules unless it is given to them by Congress. So the 
        Morrison argument runs off of the assumption that there 
        is some core inherent prerogative of the President in 
        relation to legislative rulemaking that is threatened 
        by the REINS Act. However, if all of executive branch 
        agencies' rulemakings powers must come from Congress, 
        there can't be any such core Article 2 prerogative. 
        Maybe the most helpful precedent here would be 
        Youngstown Sheet and Tube v. Sawyer, a 1952 case. 
        President Truman tried to order a seizure of the steel 
        mills and he didn't have an act of Congress to support 
        it. The Court held that in the absence of that 
        statute--such a statute or other kind of authorization 
        from Congress--that the President had no authority.\48\
---------------------------------------------------------------------------
    \48\Regulations From the Executive in Need of Scrutiny Act of 2011, 
note 6 supra, at 132 (Testimony of Eric Claeys).

    Professor Schoenbrod expanded on this point: ``The 
regulations that agencies promulgate are rules of Conduct. And 
in fact, courts talk about these regulations all the time as 
`legislative rules.' So we are not talking here about Executive 
power fundamentally; we are talking here about legislative 
power. So it is a question of Congress reclaiming some of its 
legislative powers. So, therefore, Morrison v. Olson is not 
implicated.''\49\ In other words, regulatory agencies are 
performing a legislative task when they make rules and 
regulations. Unlike the prosecutorial power at issue in 
Morrison, rulemaking is not a ``core executive function.'' On 
the contrary, it is a legislative function that was delegated 
to the agency by Congress. And when Congress delegates to the 
Executive Branch, it may do so conditionally.\50\
---------------------------------------------------------------------------
    \49\Id. at 134 (Testimony of David Schoenbrod).
    \50\See id. at 132 (Testimony of Eric Claeys) (``The Chada [sic] 
decision doesn't rule out the possibility that Congress may ever attach 
strings. It merely states if Congress does attach such a string, 
Congress must do so by a genuine bona fide legislative act that is 
passed by the House and the Senate and then either signed by the 
President or passed by two-thirds supermajority in both Houses.'').
---------------------------------------------------------------------------
    Mr. McIntosh defended the REINS Act against the charge that 
it is unconstitutional because it requires Congress to follow 
certain procedures for legislation approving a new major 
rule.\51\ According to Mr. McIntosh,
---------------------------------------------------------------------------
    \51\See U.S Const. art. I, Sec. 5, cl. 2 (``Each House may 
determine the Rules of its Proceedings. . . .'').

        The two Houses of Congress have adopted internal rules 
        jointly in the form of statutes since the earliest days 
        of the Republic. In fact, the very first statute 
        enacted by the First Congress on June 1, 1789, 
        addressed the procedures for administering oaths in the 
        House and Senate, a matter that was within the power of 
        each House to determine independently. As the Supreme 
        Court has recognized, the decisions of the First 
        Congress provide ``contemporaneous and weighty evidence 
        of the Constitution's meaning since many of the Members 
        of the First Congress had taken part in framing that 
        instrument.'' And as noted above, Congress has 
        exercised the power to create fast-track procedure many 
        times since then, including in the existing text of the 
        CRA.\52\
---------------------------------------------------------------------------
    \52\REINS Act, note 5 supra, at 62 (Testimony of David McIntosh).

    In the Committee's judgment, the REINS Act is undoubtedly 
constitutional. The procedure prescribed by the REINS Act for 
Congress to approve major rules follows the legislative process 
spelled out in the Constitution and explained in Chadha, and 
does not encroach on any core executive power. Rather, the 
REINS Act makes conditional the delegation of legislative 
power, which regulatory agencies use to make rules and 
regulations but which originates in Congress. Nor is the 
statutory fast-track process constitutionally suspect. Like the 
CRA, the REINS Act is an ordinary statute that prescribes 
binding internal rules for the houses of Congress acting 
separately. Congress has made its rules in this fashion many 
times since the Founding.\53\ The Committee believes the REINS 
Act is constitutional in this respect as well.
---------------------------------------------------------------------------
    \53\See, e.g., 5 U.S.C. Sec. 912 (government reorganization; 19 
U.S.C. Sec. 2191 (trade agreements); 2 U.S.C. Sec. 359 (congressional 
pay).
---------------------------------------------------------------------------
    At the Subcommittee's hearing on March 8, David Goldston of 
the Natural Resources Defense Council testified that the REINS 
Act will hamper regulatory agencies' ability to act in the 
public interest by politicizing the regulatory process.\54\ 
Reflecting this point of view, during the Committee's markup of 
H.R. 10 several amendments were introduced to exempt various 
types of regulations from the REINS Act.
---------------------------------------------------------------------------
    \54\Regulations From the Executive in Need of Scrutiny Act of 2011, 
note 6 supra, at 124.
---------------------------------------------------------------------------
    The Committee reiterates that the REINS Act only applies to 
major rules, not to all new rules. Further, the Act establishes 
a fast-track legislative process to ensure that joint 
resolutions do not become delayed by parliamentary maneuvering 
in either house of Congress. The REINS Act's purpose is to 
increase Congressional accountability for the difficult 
legislative policy choices that Congress too often delegates to 
regulatory agencies; the Committee does not expect that the Act 
necessarily will produce more, fewer, better, or worse 
regulations. Rather, the Act will return responsibility for 
making major rules to Congress, to which the Constitution 
assigns ``all legislative Powers''\55\ and whence the 
rulemaking power originates.
---------------------------------------------------------------------------
    \55\U.S. Const. art. I Sec. 1.
---------------------------------------------------------------------------
    In his testimony to the Subcommittee, Professor Schoenbrod 
described how Congress too often shirks taking responsibility 
for difficult decisions by assigning them to the regulatory 
process instead. Agencies then become the focus of the 
``political calculations, logrolling, and dealmaking'' that Mr. 
Goldston decries in Congress\56\--except that these 
conversations occur entirely behind the agencies' closed door 
with unelected, unaccountable bureaucrats. Professor Schoenbrod 
specifically discussed Congress's decision to charge the EPA 
with regulating leaded gasoline in the 1970's, and how the EPA 
``went into a stall'' when faced with such a controversial and 
difficult decision. ``The upshot is that lead came out of 
gasoline much more slowly than if Congress had made the hard 
choice itself,'' with significant negative consequences for 
public health in the United States.\57\ Under the REINS Act, 
Professor Schoenbrod predicts what common sense alone dictates: 
Agencies and Congress will work together throughout the 
rulemaking process to ensure that the final major rule will 
enjoy majority support among the American people's elected 
representatives in Congress. ``This is how we should get the 
sensible results in a democracy, not by elected lawmakers 
hiding behind unelected agency officials.''\58\
---------------------------------------------------------------------------
    \56\Regulations From the Executive in Need of Scrutiny Act of 2011, 
note 6 supra, at 122.
    \57\Id. at 87 (Testimony of David Schoenbrod).
    \58\Id. at 81-82 (Testimony of David Schoenbrod) (Quoting ``James 
Landis, the New Deal's sage of administrative law, who urged in 1938 
that agency regulations be presented to Congress for approval: `It is 
an act of political wisdom to put back upon the shoulders of Congress 
responsibility for controversial choices.''').
---------------------------------------------------------------------------
    In summary, the REINS Act is a constitutional, ``next 
logical step''\59\ to reform the Congressional Review Act of 
1996.
---------------------------------------------------------------------------
    \59\Id. at 98 (Testimony of Jonathan Adler).
---------------------------------------------------------------------------

                                Hearings

    The Subcommittee on Courts, Commercial and Administrative 
Law held two legislative hearings on H.R. 10, on January 24 and 
March 8, 2011.

                        Committee Consideration

    On October 24, 2011, the Committee met in open session and 
ordered the bill H.R. 10 favorably reported with an amendment, 
by a rollcall vote of 22 to 14, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 10.
    1. Amendment #2, offered by Mr. Conyers. The Amendment 
exempts from the REINS Act ``any rule that protects or saves 
lives.'' The Amendment failed by a rollcall of 13-20.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Amodei......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             13              20
----------------------------------------------------------------------------------------------------------------

    2. Amendment #5, offered by Mr. Cohen. The Amendment 
exempts from the REINS Act ``any rule that the Administrator of 
the Office of Information and Regulatory Affairs of the Office 
of Managements and Budget determines would result in greater 
benefits than costs to society.'' The Amendment failed by a 
rollcall vote of 13-22.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Amodei......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             13              22
----------------------------------------------------------------------------------------------------------------

    3. Amendment #6, offered by Mr. Johnson. The Amendment 
exempts from the REINS Act ``any rule that the Administrator of 
the Office of Information and Regulatory Affairs of the Office 
of Managements and Budget determines would result in net job 
growth.'' The Amendment failed by a rollcall vote of 14-21.

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Amodei......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             14              21
----------------------------------------------------------------------------------------------------------------

    4. Amendment #4, offered by Ms. Jackson Lee. The Amendment 
exempts from the REINS Act ``any rule relating to infant 
formula, as defined under'' the Federal Food, Drug, and 
Cosmetic Act. The Amendment failed by a rollcall vote of 13-22.

                                                 ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Amodei......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             13              22
----------------------------------------------------------------------------------------------------------------

    5. Amendment #7, offered by Mr. Quigley. The Amendment 
directs the Government Accountability Office to submit to 
Congress a report describing the cumulative benefits of major 
rules regarding air quality, water quality and food safety. The 
Amendment failed by a rollcall vote of 12-21.

                                                 ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Amodei......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             12              21
----------------------------------------------------------------------------------------------------------------

    6. Reporting H.R. 10 as amended. The bill will increase 
accountability and transparency in the Federal regulatory 
process. Reported by a rollcall of 22-14.

                                                 ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Chabot......................................................              X
Mr. Issa........................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Amodei......................................................              X
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................                              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             22              14
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 10, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, November 9, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 10, the 
``Regulations From the Executive in Need of Scrutiny Act of 
2011.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Sarah Anders, 
who can be reached at 226-9010.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 10--Regulations From the Executive in Need of Scrutiny Act of 
        2011.



As ordered reported by the House Committee on the Judiciary on 
                        October 25, 2011




                                SUMMARY

    Under current law, the Congress can prevent a rule from 
taking effect by enacting a joint resolution of disapproval. In 
contrast, H.R. 10 would require enactment of a joint resolution 
of approval prior to any major rule taking effect. Therefore, 
H.R. 10 would make major regulations dependent on future 
legislation.
    About 80 major rules have been issued per year, on average, 
over the past five years. Major rules vary greatly in their 
nature and scope. CBO and the staff of the Joint Committee on 
Taxation (JCT) cannot determine the budgetary effects of 
preventing all future major rules from going into effect, but 
we expect that enacting H.R. 10 would have effects on both 
direct spending and revenues. Pay-as-you-go procedures apply 
because enacting the legislation would affect direct spending 
and revenues.
    CBO expects that implementing H.R. 10 would not have any 
significant impact on spending subject to appropriation.
    CBO expects that H.R. 10 would impose no intergovernmental 
or private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA).

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

Background
    The Congressional Review Act (CRA) of 1996 requires Federal 
agencies to submit final rules to Congress and the Comptroller 
General before they may take effect. Final rules may only be 
annulled by Congress if a joint resolution of disapproval is 
enacted into law. H.R. 10 would amend current law by requiring 
Congress to enact a joint resolution of approval before any 
major rule may take effect. The definition of a major rule, 
which was originally set by the CRA and is left unchanged by 
H.R. 10, is any rule that the Office of Management and Budget 
determines would have:

        
 LAn annual effect on the economy of 
        $100,000,000 or more;

        
 LA major increase in costs or prices for 
        consumers; individual industries; Federal, State, or 
        local government agencies; or geographic regions; or

        
 LSignificant adverse effects on competition, 
        employment, investment, productivity, innovation, or 
        the ability of United States-based enterprises to 
        compete with foreign-based enterprises in domestic and 
        export markets.\1\
---------------------------------------------------------------------------
    \1\See 5 USC Sec. 804(2).

    H.R. 10 specifies special Congressional procedures and 
explicit timelines for enacting a joint resolution of approval 
for major rules. Under H.R. 10, if the Congress fails to enact 
a joint resolution of approval within 70 legislative (or 
session) days of receiving the major rule and accompanying 
report from a Federal agency, the rule may not take effect. 
Further, the Congress may not reconsider a joint resolution of 
approval relating to that rule in the same Congress. However, a 
major rule may take effect for one 90-calendar-day period 
without Congressional approval if the President determines via 
an executive order that the major rule is necessary for one of 
four reasons. These reasons are: to respond to an imminent 
threat to health or safety, to enforce criminal laws, to 
protect national security, or to implement an international 
trade agreement.
    Since 1997, which was the first full calendar year 
following the enactment of the CRA, Federal agencies have 
published 50 or more major rules each year. One hundred major 
rules were issued in 2010, and 79 major rules have been issued, 
on average, over the past five full calendar years. Fifty major 
rules have been issued so far in 2011 (as of November 8, 2011). 
Major rules vary greatly in scope and in their effect on the 
Federal budget. For example, major rules issued in 2011 include 
required warnings for cigarette packages and advertisements, 
Medicare payment rates for inpatient psychiatric facilities, 
and national emission standards for hazardous air pollutants 
from industrial, commercial and institutional boilers.\2\
---------------------------------------------------------------------------
    \2\GAO Federal Rules Database, http://www.gao.gov/legal/
congressact/fedrule.html.
---------------------------------------------------------------------------
    In general, most major rules with budgetary effects are 
issued to implement current law; therefore, the budgetary 
effects of such anticipated rules are reflected in CBO's 
baseline projections. For example, routine annual rules 
establish new payment rates for a variety of Medicare services. 
Such updated payment rates reflect changes in the price indices 
specified to be used for those services by current law; the 
result is often an increase in payment rates and thus an 
increase in spending.
    If H.R. 10 is enacted, baseline projections would no longer 
reflect the budgetary impact of major rules. Accordingly, if 
the Congress later considers a joint resolution of approval for 
a major rule, the estimated budgetary effect of that resolution 
would include the cost or savings of implementing that rule. 
For example, if H.R. 10 is enacted, baseline projections would 
no longer assume that payment rates for Medicare providers 
would rise over time without Congressional action. As a result, 
a Congressional resolution of approval for a major rule raising 
such rates would be estimated as having a cost to reflect those 
higher rates.
Impact on Federal Spending and Revenues
    Direct Spending. H.R. 10 would prevent all major rules from 
taking effect unless subsequent legislation is enacted. 
Therefore, in assessing the budgetary effects of H.R. 10, CBO 
considered the costs and savings that would be realized if 
anticipated major rules do not take effect. Preventing some 
major rules from taking effect would result in costs, while 
preventing others would result in savings. CBO expects that the 
rules with the largest effects on Federal spending will be 
those related to Federal health programs, particularly 
Medicare, and that enacting H.R. 10 would significantly reduce 
Medicare spending relative to current law.
    On net, CBO estimates that enacting H.R. 10 would result in 
savings for direct spending over the 2012-2021 period. Such 
budgetary effects would largely be driven by: (1) preventing 
annual updates to payment schedules for provision of Medicare 
services and other routine revisions to aspects of selected 
government programs; and (2) significantly altering the 
implementation of legislation with substantial budget effects.
    Many routine major rules are health-related and in 
particular pertain to Medicare. Some examples include rules 
that establish annual increases in payment rates for services 
provided by hospitals, physicians, and other Medicare 
providers. Enacting H.R. 10 would freeze payment structures for 
those providers at current levels, which would, on net, result 
in hundreds of billions of dollars in savings over the 2012-
2021 period. Preventing some major rules from taking effect 
would result in an increase in direct spending (from an 
increase in spending or from a reduction in offsetting 
receipts). For example, preventing annual increases in premiums 
paid by beneficiaries for Medicare Part B would reduce premium 
collections, and preventing scheduled reductions in payments 
for hospitals that serve a disproportionate share of low-income 
patients under the Medicaid program would increase costs 
relative to current law. However, CBO estimates that overall 
savings would likely offset those costs by a substantial 
amount.
    Enacting H.R. 10 would also affect the implementation of 
significant legislation for which final rules have not been 
issued. For example, H.R. 10 would make some major rules 
related to implementing the Patient Protection and Affordable 
Care Act (PPACA, Public Law 111-148) subject to a joint 
resolution of approval because a number of rules have not yet 
taken affect. Many of these rules relate to health insurance 
exchanges, which will become operational in 2014 under current 
law. Preventing rules governing exchanges from taking effect 
would, at a minimum, delay implementation of health insurance 
exchanges, which would in turn result in significant savings.
    Revenues. Enacting H.R. 10 would also affect revenues, and 
JCT expects that preventing regulations from going into effect 
could reduce collections of revenues in some cases and increase 
collections in other cases. JCT cannot determine the sign or 
magnitude of the possible effects on revenues.
Impact on Future Legislation
    If H.R. 10 is enacted, the budgetary effect of any joint 
resolution of approval for a major rule would include any 
direct spending and revenue effects of implementing that rule. 
Further, for future legislation whose implementation would be 
contingent upon the promulgation of major rules, CBO would 
estimate the budgetary effects assuming those major rules did 
not take effect. The costs or savings associated with those 
major rules would instead be estimated and counted for budget 
enforcement purposes at the time that joint resolutions to 
approve those major rules were being considered.

                      PAY-AS-YOU-GO CONSIDERATIONS

    The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting 
direct spending or revenues. Pay-as-you-go procedures apply to 
H.R. 10 because enacting the legislation would affect direct 
spending and revenues. CBO and JCT cannot determine the sign or 
magnitude of those effects.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    CBO expects that H.R. 10 would impose no intergovernmental 
or private-sector mandates as defined in UMRA. By requiring 
major rules to be approved by a joint resolution of Congress 
and potentially delaying or halting the implementation of those 
rules, the bill could affect public or private entities in a 
number of ways, including slowing reimbursements and 
eliminating or changing regulatory requirements. While the 
costs and savings tied to those individual effects could be 
significant, CBO has no basis for estimating either the overall 
direction or magnitude of those effects on public or private 
entities because of uncertainty about the nature and number of 
regulations affected.

                         ESTIMATE PREPARED BY:

Federal Costs: Sarah Anders
Impact on State, Local, and Tribal Governments: Elizabeth Cove 
    Delisle
Impact on the Private Sector: Paige Piper-Bach

                         ESTIMATE APPROVED BY:

Holly Harvey
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 10 
increase accountability and transparency in the Federal 
regulatory process by reforming the Congressional Review Act of 
1996 to require Congress to approve all new major regulations.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 10 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

Section 1. Short Title.
    This Act may be cited as the ``Regulations From the 
Executive in Need of Scrutiny Act of 2011.''
Section 2. Purpose.
    Section 2 explains that the purpose of the REINS Act is to 
increase accountability and transparency in the Federal 
regulatory process by requiring Congress to approve all new 
major regulations.
Section 3. Congressional Review of Agency Rule-Making.
    Chapter 8 of title 5, U.S. Code, is amended to create the 
following method for congressional review of new major Federal 
rules:

        801. Congressional review: This section requires 
        enhanced reporting of all Federal rules to Congress and 
        the Comptroller General and provides that a major rule 
        shall not take effect without a Joint Resolution of 
        approval under section 802. Section 801 also caps the 
        time to enact a Joint Resolution of approval at 70 
        legislative days, and empowers the President to grant 
        90-day waivers for certain emergency situations. 
        Finally, Section 801 outlines carry-over provisions 
        from one session of Congress to the next.

        802. Congressional approval procedure for major rules: 
        Section 802 establishes House and Senate procedures to 
        require both chambers to approve major rules by Joint 
        Resolution, requiring the signature of the President, 
        before such major rules can take effect. Section 802 
        also provides expedited procedural mechanisms to ensure 
        that all Joint Resolutions are given efficient 
        consideration in both chambers.

        803. Congressional disapproval procedure for nonmajor 
        rules: Section 803 preserves the existing disapproval 
        process under the Congressional Review Act for all non-
        major rules. This section permits Congress to 
        disapprove a rule if both houses of Congress pass a 
        joint resolution of disapproval that the President 
        signs (or if Congress overrides the veto). Section 803 
        also provides expedited procedural mechanisms in the 
        Senate.

        804. Definitions: Consistent with long-standing 
        Executive Orders, this section defines ``major rule'' 
        as any rule that the Administrator of the Office of 
        Information and Regulatory Affairs (OIRA) finds may 
        result in an annual effect on the economy of $100 
        million or more; a major increase in costs or prices 
        for consumers; or significant adverse effects on the 
        economy. Section 804 defines ``non-major rule'' as any 
        rule other than a major rule. Rules of particular 
        applicability, rules relating to agency management, or 
        rules relating to agency organization, are exempt from 
        the REINS Act.

        805. Judicial Review: This section provides that no 
        determination, finding, action or omission under this 
        chapter will be subject to judicial review. For 
        example, the section would preclude from judicial 
        review a determination by the OIRA Administrator that a 
        rule is a ``major rule'' or not; a Presidential 
        determination that a rule should become effective 
        immediately; an agency determination that ``good 
        cause'' requires a rule to go into effect at once; or, 
        a question as to the adequacy of a Comptroller 
        General's assessment of an agency's report. The 
        Committee intends that a court may consider, however, 
        whether a Federal agency has satisfied the requirements 
        under the REINS Act for a rule to take effect. Section 
        805 also preserves the ability to challenge a rule 
        based on a lack of statutory authority to adopt the 
        rule or a procedural defect during rulemaking.

        806. Exemption for monetary policy: Like the 
        Congressional Review Act, Section 806 exempts any rules 
        concerning monetary policy promulgated by the Board of 
        Governors of the Federal Reserve System or the Federal 
        Open Market Committee.

        807. Effective date of certain rules: Section 807 
        permits certain rules relating to hunting, fishing, or 
        camping and certain non-major rules to take effect 
        notwithstanding Section 801.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *


PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


         [CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

[Sec.
[801.  Congressional review.
[802.  Congressional disapproval procedure.
[803.  Special rule on statutory, regulatory, and judicial deadlines.
[804.  Definitions.
[805.  Judicial review.
[806.  Applicability; severability.
[807.  Exemption for monetary policy.
[808.  Effective date of certain rules.

[Sec. 801. Congressional review

  [(a)(1)(A) Before a rule can take effect, the Federal agency 
promulgating such rule shall submit to each House of the 
Congress and to the Comptroller General a report containing--
          [(i) a copy of the rule;
          [(ii) a concise general statement relating to the 
        rule, including whether it is a major rule; and
          [(iii) the proposed effective date of the rule.
  [(B) On the date of the submission of the report under 
subparagraph (A), the Federal agency promulgating the rule 
shall submit to the Comptroller General and make available to 
each House of Congress--
          [(i) a complete copy of the cost-benefit analysis of 
        the rule, if any;
          [(ii) the agency's actions relevant to sections 603, 
        604, 605, 607, and 609;
          [(iii) the agency's actions relevant to sections 202, 
        203, 204, and 205 of the Unfunded Mandates Reform Act 
        of 1995; and
          [(iv) any other relevant information or requirements 
        under any other Act and any relevant Executive orders.
  [(C) Upon receipt of a report submitted under subparagraph 
(A), each House shall provide copies of the report to the 
chairman and ranking member of each standing committee with 
jurisdiction under the rules of the House of Representatives or 
the Senate to report a bill to amend the provision of law under 
which the rule is issued.
  [(2)(A) The Comptroller General shall provide a report on 
each major rule to the committees of jurisdiction in each House 
of the Congress by the end of 15 calendar days after the 
submission or publication date as provided in section 
802(b)(2). The report of the Comptroller General shall include 
an assessment of the agency's compliance with procedural steps 
required by paragraph (1)(B).
  [(B) Federal agencies shall cooperate with the Comptroller 
General by providing information relevant to the Comptroller 
General's report under subparagraph (A).
  [(3) A major rule relating to a report submitted under 
paragraph (1) shall take effect on the latest of--
          [(A) the later of the date occurring 60 days after 
        the date on which--
                  [(i) the Congress receives the report 
                submitted under paragraph (1); or
                  [(ii) the rule is published in the Federal 
                Register, if so published;
          [(B) if the Congress passes a joint resolution of 
        disapproval described in section 802 relating to the 
        rule, and the President signs a veto of such 
        resolution, the earlier date--
                  [(i) on which either House of Congress votes 
                and fails to override the veto of the 
                President; or
                  [(ii) occurring 30 session days after the 
                date on which the Congress received the veto 
                and objections of the President; or
          [(C) the date the rule would have otherwise taken 
        effect, if not for this section (unless a joint 
        resolution of disapproval under section 802 is 
        enacted).
  [(4) Except for a major rule, a rule shall take effect as 
otherwise provided by law after submission to Congress under 
paragraph (1).
  [(5) Notwithstanding paragraph (3), the effective date of a 
rule shall not be delayed by operation of this chapter beyond 
the date on which either House of Congress votes to reject a 
joint resolution of disapproval under section 802.
  [(b)(1) A rule shall not take effect (or continue), if the 
Congress enacts a joint resolution of disapproval, described 
under section 802, of the rule.
  [(2) A rule that does not take effect (or does not continue) 
under paragraph (1) may not be reissued in substantially the 
same form, and a new rule that is substantially the same as 
such a rule may not be issued, unless the reissued or new rule 
is specifically authorized by a law enacted after the date of 
the joint resolution disapproving the original rule.
  [(c)(1) Notwithstanding any other provision of this section 
(except subject to paragraph (3)), a rule that would not take 
effect by reason of subsection (a)(3) may take effect, if the 
President makes a determination under paragraph (2) and submits 
written notice of such determination to the Congress.
  [(2) Paragraph (1) applies to a determination made by the 
President by Executive order that the rule should take effect 
because such rule is--
          [(A) necessary because of an imminent threat to 
        health or safety or other emergency;
          [(B) necessary for the enforcement of criminal laws;
          [(C) necessary for national security; or
          [(D) issued pursuant to any statute implementing an 
        international trade agreement.
  [(3) An exercise by the President of the authority under this 
subsection shall have no effect on the procedures under section 
802 or the effect of a joint resolution of disapproval under 
this section.
  [(d)(1) In addition to the opportunity for review otherwise 
provided under this chapter, in the case of any rule for which 
a report was submitted in accordance with subsection (a)(1)(A) 
during the period beginning on the date occurring--
          [(A) in the case of the Senate, 60 session days, or
          [(B) in the case of the House of Representatives, 60 
        legislative days,
before the date the Congress adjourns a session of Congress 
through the date on which the same or succeeding Congress first 
convenes its next session, section 802 shall apply to such rule 
in the succeeding session of Congress.
  [(2)(A) In applying section 802 for purposes of such 
additional review, a rule described under paragraph (1) shall 
be treated as though--
          [(i) such rule were published in the Federal Register 
        (as a rule that shall take effect) on--
                  [(I) in the case of the Senate, the 15th 
                session day, or
                  [(II) in the case of the House of 
                Representatives, the 15th legislative day,
        after the succeeding session of Congress first 
        convenes; and
          [(ii) a report on such rule were submitted to 
        Congress under subsection (a)(1) on such date.
  [(B) Nothing in this paragraph shall be construed to affect 
the requirement under subsection (a)(1) that a report shall be 
submitted to Congress before a rule can take effect.
  [(3) A rule described under paragraph (1) shall take effect 
as otherwise provided by law (including other subsections of 
this section).
  [(e)(1) For purposes of this subsection, section 802 shall 
also apply to any major rule promulgated between March 1, 1996, 
and the date of the enactment of this chapter.
  [(2) In applying section 802 for purposes of Congressional 
review, a rule described under paragraph (1) shall be treated 
as though--
          [(A) such rule were published in the Federal Register 
        on the date of enactment of this chapter; and
          [(B) a report on such rule were submitted to Congress 
        under subsection (a)(1) on such date.
  [(3) The effectiveness of a rule described under paragraph 
(1) shall be as otherwise provided by law, unless the rule is 
made of no force or effect under section 802.
  [(f) Any rule that takes effect and later is made of no force 
or effect by enactment of a joint resolution under section 802 
shall be treated as though such rule had never taken effect.
  [(g) If the Congress does not enact a joint resolution of 
disapproval under section 802 respecting a rule, no court or 
agency may infer any intent of the Congress from any action or 
inaction of the Congress with regard to such rule, related 
statute, or joint resolution of disapproval.

[Sec. 802. Congressional disapproval procedure

  [(a) For purposes of this section, the term ``joint 
resolution'' means only a joint resolution introduced in the 
period beginning on the date on which the report referred to in 
section 801(a)(1)(A) is received by Congress and ending 60 days 
thereafter (excluding days either House of Congress is 
adjourned for more than 3 days during a session of Congress), 
the matter after the resolving clause of which is as follows: 
``That Congress disapproves the rule submitted by the -- -- 
relating to -- --, and such rule shall have no force or 
effect.'' (The blank spaces being appropriately filled in).
  [(b)(1) A joint resolution described in subsection (a) shall 
be referred to the committees in each House of Congress with 
jurisdiction.
  [(2) For purposes of this section, the term ``submission or 
publication date'' means the later of the date on which--
          [(A) the Congress receives the report submitted under 
        section 801(a)(1); or
          [(B) the rule is published in the Federal Register, 
        if so published.
  [(c) In the Senate, if the committee to which is referred a 
joint resolution described in subsection (a) has not reported 
such joint resolution (or an identical joint resolution) at the 
end of 20 calendar days after the submission or publication 
date defined under subsection (b)(2), such committee may be 
discharged from further consideration of such joint resolution 
upon a petition supported in writing by 30 Members of the 
Senate, and such joint resolution shall be placed on the 
calendar.
  [(d)(1) In the Senate, when the committee to which a joint 
resolution is referred has reported, or when a committee is 
discharged (under subsection (c)) from further consideration of 
a joint resolution described in subsection (a), it is at any 
time thereafter in order (even though a previous motion to the 
same effect has been disagreed to) for a motion to proceed to 
the consideration of the joint resolution, and all points of 
order against the joint resolution (and against consideration 
of the joint resolution) are waived. The motion is not subject 
to amendment, or to a motion to postpone, or to a motion to 
proceed to the consideration of other business. A motion to 
reconsider the vote by which the motion is agreed to or 
disagreed to shall not be in order. If a motion to proceed to 
the consideration of the joint resolution is agreed to, the 
joint resolution shall remain the unfinished business of the 
Senate until disposed of.
  [(2) In the Senate, debate on the joint resolution, and on 
all debatable motions and appeals in connection therewith, 
shall be limited to not more than 10 hours, which shall be 
divided equally between those favoring and those opposing the 
joint resolution. A motion further to limit debate is in order 
and not debatable. An amendment to, or a motion to postpone, or 
a motion to proceed to the consideration of other business, or 
a motion to recommit the joint resolution is not in order.
  [(3) In the Senate, immediately following the conclusion of 
the debate on a joint resolution described in subsection (a), 
and a single quorum call at the conclusion of the debate if 
requested in accordance with the rules of the Senate, the vote 
on final passage of the joint resolution shall occur.
  [(4) Appeals from the decisions of the Chair relating to the 
application of the rules of the Senate to the procedure 
relating to a joint resolution described in subsection (a) 
shall be decided without debate.
  [(e) In the Senate the procedure specified in subsection (c) 
or (d) shall not apply to the consideration of a joint 
resolution respecting a rule--
          [(1) after the expiration of the 60 session days 
        beginning with the applicable submission or publication 
        date, or
          [(2) if the report under section 801(a)(1)(A) was 
        submitted during the period referred to in section 
        801(d)(1), after the expiration of the 60 session days 
        beginning on the 15th session day after the succeeding 
        session of Congress first convenes.
  [(f) If, before the passage by one House of a joint 
resolution of that House described in subsection (a), that 
House receives from the other House a joint resolution 
described in subsection (a), then the following procedures 
shall apply:
          [(1) The joint resolution of the other House shall 
        not be referred to a committee.
          [(2) With respect to a joint resolution described in 
        subsection (a) of the House receiving the joint 
        resolution--
                  [(A) the procedure in that House shall be the 
                same as if no joint resolution had been 
                received from the other House; but
                  [(B) the vote on final passage shall be on 
                the joint resolution of the other House.
  [(g) This section is enacted by Congress--
          [(1) as an exercise of the rulemaking power of the 
        Senate and House of Representatives, respectively, and 
        as such it is deemed a part of the rules of each House, 
        respectively, but applicable only with respect to the 
        procedure to be followed in that House in the case of a 
        joint resolution described in subsection (a), and it 
        supersedes other rules only to the extent that it is 
        inconsistent with such rules; and
          [(2) with full recognition of the constitutional 
        right of either House to change the rules (so far as 
        relating to the procedure of that House) at any time, 
        in the same manner, and to the same extent as in the 
        case of any other rule of that House.

[Sec. 803. Special rule on statutory, regulatory, and judicial 
                    deadlines

  [(a) In the case of any deadline for, relating to, or 
involving any rule which does not take effect (or the 
effectiveness of which is terminated) because of enactment of a 
joint resolution under section 802, that deadline is extended 
until the date 1 year after the date of enactment of the joint 
resolution. Nothing in this subsection shall be construed to 
affect a deadline merely by reason of the postponement of a 
rule's effective date under section 801(a).
  [(b) The term ``deadline'' means any date certain for 
fulfilling any obligation or exercising any authority 
established by or under any Federal statute or regulation, or 
by or under any court order implementing any Federal statute or 
regulation.

[Sec. 804. Definitions

  [For purposes of this chapter--
          [(1) The term ``Federal agency'' means any agency as 
        that term is defined in section 551(1).
          [(2) The term ``major rule'' means any rule that the 
        Administrator of the Office of Information and 
        Regulatory Affairs of the Office of Management and 
        Budget finds has resulted in or is likely to result 
        in--
                  [(A) an annual effect on the economy of 
                $100,000,000 or more;
                  [(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, 
                State, or local government agencies, or 
                geographic regions; or
                  [(C) significant adverse effects on 
                competition, employment, investment, 
                productivity, innovation, or on the ability of 
                United States-based enterprises to compete with 
                foreign-based enterprises in domestic and 
                export markets.
        The term does not include any rule promulgated under 
        the Telecommunications Act of 1996 and the amendments 
        made by that Act.
          [(3) The term ``rule'' has the meaning given such 
        term in section 551, except that such term does not 
        include--
                  [(A) any rule of particular applicability, 
                including a rule that approves or prescribes 
                for the future rates, wages, prices, services, 
                or allowances therefor, corporate or financial 
                structures, reorganizations, mergers, or 
                acquisitions thereof, or accounting practices 
                or disclosures bearing on any of the foregoing;
                  [(B) any rule relating to agency management 
                or personnel; or
                  [(C) any rule of agency organization, 
                procedure, or practice that does not 
                substantially affect the rights or obligations 
                of non-agency parties.

[Sec. 805. Judicial review

  [No determination, finding, action, or omission under this 
chapter shall be subject to judicial review.

[Sec. 806. Applicability; severability

  [(a) This chapter shall apply notwithstanding any other 
provision of law.
  [(b) If any provision of this chapter or the application of 
any provision of this chapter to any person or circumstance, is 
held invalid, the application of such provision to other 
persons or circumstances, and the remainder of this chapter, 
shall not be affected thereby.

[Sec. 807. Exemption for monetary policy

  [Nothing in this chapter shall apply to rules that concern 
monetary policy proposed or implemented by the Board of 
Governors of the Federal Reserve System or the Federal Open 
Market Committee.]

          CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

Sec.
801. Congressional review.
802. Congressional approval procedure for major rules.
803. Congressional disapproval procedure for nonmajor rules.
804. Definitions.
805. Judicial review.
806. Exemption for monetary policy.
807. Effective date of certain rules.

Sec. 801. Congressional review

  (a)(1)(A) Before a rule may take effect, the Federal agency 
promulgating such rule shall submit to each House of the 
Congress and to the Comptroller General a report containing--
          (i) a copy of the rule;
          (ii) a concise general statement relating to the 
        rule;
          (iii) a classification of the rule as a major or 
        nonmajor rule, including an explanation of the 
        classification specifically addressing each criteria 
        for a major rule contained within sections 804(2)(A), 
        804(2)(B), and 804(2)(C);
          (iv) a list of any other related regulatory actions 
        intended to implement the same statutory provision or 
        regulatory objective as well as the individual and 
        aggregate economic effects of those actions; and
          (v) the proposed effective date of the rule.
  (B) On the date of the submission of the report under 
subparagraph (A), the Federal agency promulgating the rule 
shall submit to the Comptroller General and make available to 
each House of Congress--
          (i) a complete copy of the cost-benefit analysis of 
        the rule, if any;
          (ii) the agency's actions pursuant to sections 603, 
        604, 605, 607, and 609 of this title;
          (iii) the agency's actions pursuant to sections 202, 
        203, 204, and 205 of the Unfunded Mandates Reform Act 
        of 1995; and
          (iv) any other relevant information or requirements 
        under any other Act and any relevant Executive orders.
  (C) Upon receipt of a report submitted under subparagraph 
(A), each House shall provide copies of the report to the 
chairman and ranking member of each standing committee with 
jurisdiction under the rules of the House of Representatives or 
the Senate to report a bill to amend the provision of law under 
which the rule is issued.
  (2)(A) The Comptroller General shall provide a report on each 
major rule to the committees of jurisdiction by the end of 15 
calendar days after the submission or publication date as 
provided in section 802(b)(2). The report of the Comptroller 
General shall include an assessment of the agency's compliance 
with procedural steps required by paragraph (1)(B).
  (B) Federal agencies shall cooperate with the Comptroller 
General by providing information relevant to the Comptroller 
General's report under subparagraph (A).
  (3) A major rule relating to a report submitted under 
paragraph (1) shall take effect upon enactment of a joint 
resolution of approval described in section 802 or as provided 
for in the rule following enactment of a joint resolution of 
approval described in section 802, whichever is later.
  (4) A nonmajor rule shall take effect as provided by section 
803 after submission to Congress under paragraph (1).
  (5) If a joint resolution of approval relating to a major 
rule is not enacted within the period provided in subsection 
(b)(2), then a joint resolution of approval relating to the 
same rule may not be considered under this chapter in the same 
Congress by either the House of Representatives or the Senate.
  (b)(1) A major rule shall not take effect unless the Congress 
enacts a joint resolution of approval described under section 
802.
  (2) If a joint resolution described in subsection (a) is not 
enacted into law by the end of 70 session days or legislative 
days, as applicable, beginning on the date on which the report 
referred to in section 801(a)(1)(A) is received by Congress 
(excluding days either House of Congress is adjourned for more 
than 3 days during a session of Congress), then the rule 
described in that resolution shall be deemed not to be approved 
and such rule shall not take effect.
  (c)(1) Notwithstanding any other provision of this section 
(except subject to paragraph (3)), a major rule may take effect 
for one 90-calendar-day period if the President makes a 
determination under paragraph (2) and submits written notice of 
such determination to the Congress.
  (2) Paragraph (1) applies to a determination made by the 
President by Executive order that the major rule should take 
effect because such rule is--
          (A) necessary because of an imminent threat to health 
        or safety or other emergency;
          (B) necessary for the enforcement of criminal laws;
          (C) necessary for national security; or
          (D) issued pursuant to any statute implementing an 
        international trade agreement.
  (3) An exercise by the President of the authority under this 
subsection shall have no effect on the procedures under section 
802.
  (d)(1) In addition to the opportunity for review otherwise 
provided under this chapter, in the case of any rule for which 
a report was submitted in accordance with subsection (a)(1)(A) 
during the period beginning on the date occurring--
          (A) in the case of the Senate, 60 session days, or
          (B) in the case of the House of Representatives, 60 
        legislative days,
before the date the Congress is scheduled to adjourn a session 
of Congress through the date on which the same or succeeding 
Congress first convenes its next session, sections 802 and 803 
shall apply to such rule in the succeeding session of Congress.
  (2)(A) In applying sections 802 and 803 for purposes of such 
additional review, a rule described under paragraph (1) shall 
be treated as though--
          (i) such rule were published in the Federal Register 
        on--
                  (I) in the case of the Senate, the 15th 
                session day, or
                  (II) in the case of the House of 
                Representatives, the 15th legislative day,
        after the succeeding session of Congress first 
        convenes; and
          (ii) a report on such rule were submitted to Congress 
        under subsection (a)(1) on such date.
  (B) Nothing in this paragraph shall be construed to affect 
the requirement under subsection (a)(1) that a report shall be 
submitted to Congress before a rule can take effect.
  (3) A rule described under paragraph (1) shall take effect as 
otherwise provided by law (including other subsections of this 
section).

Sec. 802. Congressional approval procedure for major rules

  (a) For purposes of this section, the term ``joint 
resolution'' means only a joint resolution introduced on or 
after the date on which the report referred to in section 
801(a)(1)(A) is received by Congress (excluding days either 
House of Congress is adjourned for more than 3 days during a 
session of Congress), the matter after the resolving clause of 
which is as follows: ``That Congress approves the rule 
submitted by the _ _ relating to _ _.'' (The blank spaces being 
appropriately filled in).
          (1) In the House, the majority leader of the House of 
        Representatives (or his designee) and the minority 
        leader of the House of Representatives (or his 
        designee) shall introduce such joint resolution 
        described in subsection (a) (by request), within 3 
        legislative days after Congress receives the report 
        referred to in section 801(a)(1)(A).
          (2) In the Senate, the majority leader of the Senate 
        (or his designee) and the minority leader of the Senate 
        (or his designee) shall introduce such joint resolution 
        described in subsection (a) (by request), within 3 
        session days after Congress receives the report 
        referred to in section 801(a)(1)(A).
  (b)(1) A joint resolution described in subsection (a) shall 
be referred to the committees in each House of Congress with 
jurisdiction under the rules of the House of Representatives or 
the Senate to report a bill to amend the provision of law under 
which the rule is issued.
  (2) For purposes of this section, the term ``submission 
date'' means the date on which the Congress receives the report 
submitted under section 801(a)(1).
  (c) In the Senate, if the committee or committees to which a 
joint resolution described in subsection (a) has been referred 
have not reported it at the end of 15 session days after its 
introduction, such committee or committees shall be 
automatically discharged from further consideration of the 
resolution and it shall be placed on the calendar. A vote on 
final passage of the resolution shall be taken on or before the 
close of the 15th session day after the resolution is reported 
by the committee or committees to which it was referred, or 
after such committee or committees have been discharged from 
further consideration of the resolution.
  (d)(1) In the Senate, when the committee or committees to 
which a joint resolution is referred have reported, or when a 
committee or committees are discharged (under subsection (c)) 
from further consideration of a joint resolution described in 
subsection (a), it is at any time thereafter in order (even 
though a previous motion to the same effect has been disagreed 
to) for a motion to proceed to the consideration of the joint 
resolution, and all points of order against the joint 
resolution (and against consideration of the joint resolution) 
are waived. The motion is not subject to amendment, or to a 
motion to postpone, or to a motion to proceed to the 
consideration of other business. A motion to reconsider the 
vote by which the motion is agreed to or disagreed to shall not 
be in order. If a motion to proceed to the consideration of the 
joint resolution is agreed to, the joint resolution shall 
remain the unfinished business of the Senate until disposed of.
  (2) In the Senate, debate on the joint resolution, and on all 
debatable motions and appeals in connection therewith, shall be 
limited to not more than 2 hours, which shall be divided 
equally between those favoring and those opposing the joint 
resolution. A motion to further limit debate is in order and 
not debatable. An amendment to, or a motion to postpone, or a 
motion to proceed to the consideration of other business, or a 
motion to recommit the joint resolution is not in order.
  (3) In the Senate, immediately following the conclusion of 
the debate on a joint resolution described in subsection (a), 
and a single quorum call at the conclusion of the debate if 
requested in accordance with the rules of the Senate, the vote 
on final passage of the joint resolution shall occur.
  (4) Appeals from the decisions of the Chair relating to the 
application of the rules of the Senate to the procedure 
relating to a joint resolution described in subsection (a) 
shall be decided without debate.
  (e)(1) In the House of Representatives, if the committee or 
committees to which a joint resolution described in subsection 
(a) has been referred have not reported it at the end of 15 
legislative days after its introduction, such committee or 
committees shall be automatically discharged from further 
consideration of the resolution and it shall be placed on the 
appropriate calendar. A vote on final passage of the resolution 
shall be taken on or before the close of the 15th legislative 
day after the resolution is reported by the committee or 
committees to which it was referred, or after such committee or 
committees have been discharged from further consideration of 
the resolution.
  (2)(A) A motion in the House of Representatives to proceed to 
the consideration of a resolution shall be privileged and not 
debatable. An amendment to the motion shall not be in order, 
nor shall it be in order to move to reconsider the vote by 
which the motion is agreed to or disagreed to.
  (B) Debate in the House of Representatives on a resolution 
shall be limited to not more than two hours, which shall be 
divided equally between those favoring and those opposing the 
resolution. A motion to further limit debate shall not be 
debatable. No amendment to, or motion to recommit, the 
resolution shall be in order. It shall not be in order to 
reconsider the vote by which a resolution is agreed to or 
disagreed to.
  (C) Motions to postpone, made in the House of Representatives 
with respect to the consideration of a resolution, and motions 
to proceed to the consideration of other business, shall be 
decided without debate.
  (D) All appeals from the decisions of the Chair relating to 
the application of the Rules of the House of Representatives to 
the procedure relating to a resolution shall be decided without 
debate.
  (f) If, before the passage by one House of a joint resolution 
of that House described in subsection (a), that House receives 
from the other House a joint resolution described in subsection 
(a), then the following procedures shall apply with respect to 
a joint resolution described in subsection (a) of the House 
receiving the joint resolution--
          (1) the procedure in that House shall be the same as 
        if no joint resolution had been received from the other 
        House; but
          (2) the vote on final passage shall be on the joint 
        resolution of the other House.
  (g) This section and section 803 are enacted by Congress--
          (1) as an exercise of the rulemaking power of the 
        Senate and House of Representatives, respectively, and 
        as such it is deemed a part of the rules of each House, 
        respectively, but applicable only with respect to the 
        procedure to be followed in that House in the case of a 
        joint resolution described in subsection (a), and it 
        supersedes other rules only to the extent that it is 
        inconsistent with such rules; and
          (2) with full recognition of the constitutional right 
        of either House to change the rules (so far as relating 
        to the procedure of that House) at any time, in the 
        same manner, and to the same extent as in the case of 
        any other rule of that House.

Sec. 803. Congressional disapproval procedure for nonmajor rules

  (a) For purposes of this section, the term ``joint 
resolution'' means only a joint resolution introduced in the 
period beginning on the date on which the report referred to in 
section 801(a)(1)(A) is received by Congress and ending 60 days 
thereafter (excluding days either House of Congress is 
adjourned for more than 3 days during a session of Congress), 
the matter after the resolving clause of which is as follows: 
``That Congress disapproves the nonmajor rule submitted by the 
_ _ relating to _ _, and such rule shall have no force or 
effect.'' (The blank spaces being appropriately filled in).
  (b)(1) A joint resolution described in subsection (a) shall 
be referred to the committees in each House of Congress with 
jurisdiction.
  (2) For purposes of this section, the term submission or 
publication date means the later of the date on which--
          (A) the Congress receives the report submitted under 
        section 801(a)(1); or
          (B) the nonmajor rule is published in the Federal 
        Register, if so published.
  (c) In the Senate, if the committee to which is referred a 
joint resolution described in subsection (a) has not reported 
such joint resolution (or an identical joint resolution) at the 
end of 15 session days after the date of introduction of the 
joint resolution, such committee may be discharged from further 
consideration of such joint resolution upon a petition 
supported in writing by 30 Members of the Senate, and such 
joint resolution shall be placed on the calendar.
  (d)(1) In the Senate, when the committee to which a joint 
resolution is referred has reported, or when a committee is 
discharged (under subsection (c)) from further consideration of 
a joint resolution described in subsection (a), it is at any 
time thereafter in order (even though a previous motion to the 
same effect has been disagreed to) for a motion to proceed to 
the consideration of the joint resolution, and all points of 
order against the joint resolution (and against consideration 
of the joint resolution) are waived. The motion is not subject 
to amendment, or to a motion to postpone, or to a motion to 
proceed to the consideration of other business. A motion to 
reconsider the vote by which the motion is agreed to or 
disagreed to shall not be in order. If a motion to proceed to 
the consideration of the joint resolution is agreed to, the 
joint resolution shall remain the unfinished business of the 
Senate until disposed of.
  (2) In the Senate, debate on the joint resolution, and on all 
debatable motions and appeals in connection therewith, shall be 
limited to not more than 10 hours, which shall be divided 
equally between those favoring and those opposing the joint 
resolution. A motion to further limit debate is in order and 
not debatable. An amendment to, or a motion to postpone, or a 
motion to proceed to the consideration of other business, or a 
motion to recommit the joint resolution is not in order.
  (3) In the Senate, immediately following the conclusion of 
the debate on a joint resolution described in subsection (a), 
and a single quorum call at the conclusion of the debate if 
requested in accordance with the rules of the Senate, the vote 
on final passage of the joint resolution shall occur.
  (4) Appeals from the decisions of the Chair relating to the 
application of the rules of the Senate to the procedure 
relating to a joint resolution described in subsection (a) 
shall be decided without debate.
  (e) In the Senate the procedure specified in subsection (c) 
or (d) shall not apply to the consideration of a joint 
resolution respecting a nonmajor rule--
          (1) after the expiration of the 60 session days 
        beginning with the applicable submission or publication 
        date, or
          (2) if the report under section 801(a)(1)(A) was 
        submitted during the period referred to in section 
        801(d)(1), after the expiration of the 60 session days 
        beginning on the 15th session day after the succeeding 
        session of Congress first convenes.
  (f) If, before the passage by one House of a joint resolution 
of that House described in subsection (a), that House receives 
from the other House a joint resolution described in subsection 
(a), then the following procedures shall apply:
          (1) The joint resolution of the other House shall not 
        be referred to a committee.
          (2) With respect to a joint resolution described in 
        subsection (a) of the House receiving the joint 
        resolution--
                  (A) the procedure in that House shall be the 
                same as if no joint resolution had been 
                received from the other House; but
                  (B) the vote on final passage shall be on the 
                joint resolution of the other House.

Sec. 804. Definitions

  For purposes of this chapter--
          (1) The term ``Federal agency'' means any agency as 
        that term is defined in section 551(1).
          (2) The term ``major rule'' means any rule, including 
        an interim final rule, that the Administrator of the 
        Office of Information and Regulatory Affairs of the 
        Office of Management and Budget finds has resulted in 
        or is likely to result in--
                  (A) an annual effect on the economy of 
                $100,000,000 or more;
                  (B) a major increase in costs or prices for 
                consumers, individual industries, Federal, 
                State, or local government agencies, or 
                geographic regions; or
                  (C) significant adverse effects on 
                competition, employment, investment, 
                productivity, innovation, or on the ability of 
                United States-based enterprises to compete with 
                foreign-based enterprises in domestic and 
                export markets.
          (3) The term ``nonmajor rule'' means any rule that is 
        not a major rule.
          (4) The term ``rule'' has the meaning given such term 
        in section 551, except that such term does not 
        include--
                  (A) any rule of particular applicability, 
                including a rule that approves or prescribes 
                for the future rates, wages, prices, services, 
                or allowances therefore, corporate or financial 
                structures, reorganizations, mergers, or 
                acquisitions thereof, or accounting practices 
                or disclosures bearing on any of the foregoing;
                  (B) any rule relating to agency management or 
                personnel; or
                  (C) any rule of agency organization, 
                procedure, or practice that does not 
                substantially affect the rights or obligations 
                of non-agency parties.

Sec. 805. Judicial review

  (a) No determination, finding, action, or omission under this 
chapter shall be subject to judicial review.
  (b) Notwithstanding subsection (a), a court may determine 
whether a Federal agency has completed the necessary 
requirements under this chapter for a rule to take effect.
  (c) The enactment of a joint resolution of approval under 
section 802 shall not be interpreted to serve as a grant or 
modification of statutory authority by Congress for the 
promulgation of a rule, shall not extinguish or affect any 
claim, whether substantive or procedural, against any alleged 
defect in a rule, and shall not form part of the record before 
the court in any judicial proceeding concerning a rule except 
for purposes of determining whether or not the rule is in 
effect.

Sec. 806. Exemption for monetary policy

  Nothing in this chapter shall apply to rules that concern 
monetary policy proposed or implemented by the Board of 
Governors of the Federal Reserve System or the Federal Open 
Market Committee.

Sec. 807. Effective date of certain rules

  Notwithstanding section 801--
          (1) any rule that establishes, modifies, opens, 
        closes, or conducts a regulatory program for a 
        commercial, recreational, or subsistence activity 
        related to hunting, fishing, or camping; or
          (2) any rule other than a major rule which an agency 
        for good cause finds (and incorporates the finding and 
        a brief statement of reasons therefore in the rule 
        issued) that notice and public procedure thereon are 
        impracticable, unnecessary, or contrary to the public 
        interest,
shall take effect at such time as the Federal agency 
promulgating the rule determines.

           *       *       *       *       *       *       *


                            Dissenting Views


                              INTRODUCTION

    H.R. 10, the ``Regulations From the Executive in Need of 
Scrutiny Act of 2011,'' (REINS Act) is a flawed attempt to make 
the rulemaking process more subject to Congressional oversight 
and accountability. In effect, however, the bill will 
substantially delay and potentially prevent agency rulemaking, 
at great risk to public health and safety, by requiring that 
any major new rule be affirmatively approved by Congress and 
the President. The bill effectuates this process by amending 
the Congressional Review Act\1\ (CRA) to require Congressional 
approval of major rules (i.e., rules with an annual impact on 
the economy of at least $100 million) before they may become 
effective.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. Sec. 801-08 (2011).
---------------------------------------------------------------------------
    This legislation is based on the false premise that 
regulation is bad for business, only results in costs, and 
stifles job creation. H.R. 10 is unnecessary because Congress 
already has sufficient tools to conduct effective oversight, 
which include narrowing delegations of authority to agencies, 
controlling agency appropriations, and conducting oversight of 
agency activity. In addition, H.R. 10 presents serious 
Constitutional concerns as it may violate inherent separation 
of powers principles.
    By requiring Congressional approval of major rules, H.R. 10 
would serve as a procedural ``chokehold'' in multiple ways on 
Federal agency rulemaking and undermine the ability of agencies 
to provide essential protections to Americans. This legislation 
is a thinly disguised attempt to prevent the implementation of 
critical laws, such as the Patient Protection and Affordable 
Care Act\2\ and the Dodd-Frank Wall Street Reform and Consumer 
Protection Act.\3\
---------------------------------------------------------------------------
    \2\Pub. L. No. 111-148, 124 Stat. 119 (2010).
    \3\Pub. L. No. 111-203, 124 Stat. 1376 (2010).
---------------------------------------------------------------------------
    The REINS Act is strongly opposed by a broad coalition of 
72 environmental, labor, and consumer organizations, including 
the AFL-CIO, the American Federation of State, County and 
Municipal Employees, the American Lung Association, Families 
USA, the National Association of Consumer Advocates, the League 
of Conservation Voters, and the Union of Concerned Scientists, 
Science Integrity Division.\4\ Additionally, 66 respected 
academics in the fields of administrative and environmental law 
also oppose the REINS Act because it is ``unnecessary to 
establish agency accountability and unwise as a matter of 
public policy because it undercuts the implementation of laws 
intended to protect people and the environment.''\5\
---------------------------------------------------------------------------
    \4\The other organizations include: 350.org, AhEeCOSH, Alliance for 
a Just Society, American Federation of Government Employees, American 
Rivers, ARISE CHICAGO, Arkansas Interfaith Committee for Worker 
Justice, Association of Flight Attendants-CWA, BlueGreen Alliance, 
Breast Cancer Action, California Rural Legal Assistance Foundation, 
Center for Biological Diversity, Center for Science in the Public 
Interest, Clean Air Watch, Clean Water Action, Community Organizations 
in Action, Consumer Federation of America, Consumers Union, Defenders 
of Wildlife, Demos, Earth Day Network, Earthjustice, Easter Seals, 
Environment America, Environmental Defense Fund, Equal Justice Center, 
Friends of the Earth, Gray Panthers, Greenpeace USA, Health Access 
California, Health Care for America Now, Interfaith Worker Justice, 
Interfaith Worker Justice Committee of Colorado, International Union, 
United Automobile, Aerospace, & Agricultural Implement Workers of 
America (UAW), 3 of 3, National Audubon Society, National Consumers 
League, National Council for Occupational Safety and Health, National 
Gay and Lesbian Task Force Action Fund, National Women's Health 
Network, Natural Resources Defense Council, OMB Watch, Our Bodies 
Ourselves, People for the American Way, Pesticide Action Network North 
America, Physicians for Social Responsibility, ProgressNow, Public 
Citizen, Reproductive Health Technologies Project, Republicans for 
Environmental Protection, RICOSH, Safe Tables Our Priority (S.T.O.P.), 
Sierra Club, South Florida Interfaith Worker Justice, Southern 
Environmental Law Center, The National Consumer Voice for Quality Long-
Term Care, The TMJ Association, The Wilderness Society, Transport 
Workers Union of America AFL-CIO, U.S. PIRG, United Steelworkers, 
United Support & Memorial for Workplace Fatalities, USAction, Voces de 
la Frontera, Women's Voices for the Earth, Workers Interfaith Network. 
See Letter from 72 organizations to Representative John Conyers, Jr., 
Ranking Member, Committee on the Judiciary (Feb. 11, 2011) (on file 
with the United States House of Representatives, Comm. on the 
Judiciary, Democrats). The American Association for Justice also 
submitted a letter opposing H.R. 10 to Representative John Conyers, 
Jr., Ranking Member, Committee on the Judiciary (Feb. 1, 2001) (on file 
with the United States House of Representatives, Comm. on the 
Judiciary, Democrats).
    \5\See Letter from 66 law professors to Members of the United 
States Senate and United States House of Representatives (Feb. 8, 2011) 
(on file with the United States House of Representatives, Comm. on the 
Judiciary, Democrats).
---------------------------------------------------------------------------
    For the foregoing reasons and others discussed more fully 
below, we must respectfully dissent and urge opposition to H.R. 
10.

                       DESCRIPTION AND BACKGROUND

    The REINS Act would dramatically change agency rulemaking 
by requiring all new major regulations to be affirmatively 
approved by both Houses of Congress and the President before 
they can take effect. It should be noted, however, that 
Congress already has the authority under the CRA to disapprove 
such rules.\6\ Pursuant to the CRA, any agency rule 
automatically takes effect absent a joint resolution of 
disapproval enacted by Congress within 60 legislative days from 
receipt of the rule.\7\ H.R. 10 amends the CRA to create a new 
process for major rules whereby they may only take effect upon 
Congressional and Presidential approval. By imposing this 
unrealistic and unworkable requirement, the REINS Act will 
effectively prevent Federal rulemaking and thereby threaten 
public health and safety as well as the economic soundness of 
our Nation.
---------------------------------------------------------------------------
    \6\5 U.S.C. Sec. 801(b) (2011).
    \7\See 5 U.S.C. Sec. 802 (2011) (outlining congressional 
disapproval procedure).
---------------------------------------------------------------------------
    Section 2 of the REINS Act sets forth the substantive 
provisions of the legislation. New Section 801(a)(1)(A) 
requires a Federal agency to submit a report to each House of 
Congress and to the Comptroller General of the Government 
Accountability Office (GAO) a report containing: (1) a copy of 
the rule; (2) a concise general statement relating to the rule; 
(3) a classification of the rule as a major or non-major rule, 
including the rule's classification specifically addressing 
each element of the definition of a ``major rule;'' (4) a list 
of any other related regulatory actions intended to implement 
the same statutory provision or regulatory objective, together 
with a description of the rule's individual and aggregate 
effects; and (5) the rule's proposed effective date. With 
respect to the rule's classification as a major rule, the 
report must indicate: (1) whether the rule has an annual effect 
on the economy of $100 million or more; (2) whether the rule 
imposes a major increase in costs or prices for consumers, 
individual industries, Federal, state, or local government 
agencies, or geographic regions; or (3) whether the rule 
imposes significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of United 
States-based enterprises to compete with foreign-based 
enterprises.
    In addition, new section 801(a)(1)(B) requires an agency to 
submit to GAO and both Houses of Congress: (1) a cost-benefit 
analysis of the rule, if any; (2) actions taken pursuant to the 
Regulatory Flexibility Act;\8\ (3) actions taken to comply with 
the Unfunded Mandates Reform Act of 1995;\9\ and (4) any other 
relevant information or requirement under any other act or 
executive order.
---------------------------------------------------------------------------
    \8\5 U.S.C. Sec. Sec. 601 et seq. (2011).
    \9\Pub. L. No. 104-4, 109 Stat. 48 (1995).
---------------------------------------------------------------------------
    Under new section 801(a)(1)(C), each House of Congress must 
provide copies of the report required by 801(a)(1)(A) to the 
Chair and Ranking Member of each House and Senate standing 
committee with jurisdiction to report a bill to amend the 
provision of law under which the rule is issued (hereinafter 
``Committees of Jurisdiction'').
    Pursuant to new section 801(a)(2)(A), the GAO must provide 
a report on each major rule to the Committees of Jurisdiction 
within 15 calendar days from the date on which an agency 
submitted the report required by section 801(a)(1)(A). The 
GAO's report must include an assessment of the agency's 
compliance with 801(a)(1)(B). New section 801(a)(2)(B) 
specifies that agencies must cooperate with the GAO in 
providing information relevant to preparing its report required 
under 801(a)(2)(A).
    New section 801(a)(3) provides that a major rule takes 
effect upon enactment of a joint resolution of approval or 
whatever the enactment date is in the rule following enactment 
of the joint resolution, whichever is later.
    New section 801(a)(4) retains current law; i.e., nonmajor 
rules take effect after 60 days if Congress does not enact a 
joint resolution of disapproval.
    New section 801(a)(5) clarifies that if a joint resolution 
of approval is not enacted, a joint resolution relating to the 
same rule cannot be considered in the same Congress by either 
House.
    New section 801(b)(1) prohibits a major rule from taking 
effect unless Congress enacts a joint resolution of approval 
pursuant to the Act. In turn, new section 801(b)(2) deems a 
major rule as not approved and without effect if a joint 
resolution of approval concerning that rule is not enacted 
within 70 legislative or session days beginning on the date on 
which Congress receives the report required by section 
801(a)(1)(A), excluding days that either House is adjourned for 
more than three days during session.
    New section 801(c) sets forth certain temporary exceptions 
to the Congressional approval process for major rules. New 
section 801(c)(1) provides that a major rule may take effect 
for one 90-calendar-day period if the President makes a 
determination under section 801(c)(2). New section 801(c)(2), 
in turn, authorizes the President to determine by executive 
order that a major rule should take effect notwithstanding the 
requirements of this statute if such rule is: (1) necessary 
because of an imminent threat to health or safety or other 
emergency; (2) necessary for the enforcement of criminal laws; 
(3) necessary for national security; or (4) issued pursuant to 
a statute implementing an international trade agreement. New 
section 801(c)(3), however, clarifies that the President's 
exercise of authority under this subsection does not affect 
Congressional approval procedures outlined in new section 802.
    New section 801(d) addresses instances when major rules are 
submitted to Congress within 60 legislative or session days 
prior to the adjournment of a Congressional session through the 
date Congress first convenes its next session. New section 
801(d)(1) states that any rule submitted within such period is 
subject to the Act's approval and disapproval procedures in the 
succeeding session. New section 801(d)(2)(A) specifies that, in 
such a circumstance, the rule must be treated as if it were 
published in the Federal Register on the 15th session or 
legislative day after the succeeding session convenes and 
considers the report on such a rule to have been submitted on 
such day. New section 801(d)(2)(B) specifies that this 
subsection should not be construed to affect the requirement 
that a rule be submitted to Congress before it can take effect. 
Finally, new section 801(d)(3) provides that a rule in this 
circumstance takes effect as otherwise provided for by law, 
including pursuant to the other provisions of the Act.
    Although new Section 802 is not within the jurisdiction of 
our Committee, an explanation of this provision is necessary to 
place the remainder of the bill in perspective. Subsections (c) 
and (d) detail the expedited Senate procedures for 
consideration of joint resolutions of approval. Subsection (c) 
requires that a Committee of Jurisdiction be automatically 
discharged from further consideration of a joint resolution if 
it has not reported the joint resolution within 15 session days 
after the joint resolution's introduction. The vote on final 
passage of the joint resolution must take place on or before 
the 15th session day after the relevant Committees of 
Jurisdiction report the joint resolution or are discharged from 
further consideration of such joint resolution.
    New section 802(d)(2) limits total Senate debate time on a 
joint resolution of approval (including all debatable motions 
and related appeals) to a mere two hours, to be divided evenly 
between those in support and those in opposition to the joint 
resolution. A motion to further limit debate is in order, but 
not debatable. Amendments and motions to postpone, to proceed 
to consideration of other business, or to recommit the joint 
resolution are not in order.
    New section 802(e) details expedited procedures in the 
House of Representatives for consideration of joint resolutions 
of approval. New section 802(e)(1) requires that a Committee of 
Jurisdiction be automatically discharged from further 
consideration of a joint resolution if it has not reported the 
joint resolution by the end of 15 legislative days after the 
joint resolution's introduction. The vote on final passage of 
the joint resolution must take place on or before the 15th 
legislative day after the relevant Committee of Jurisdiction 
report the joint resolution or are discharged from further 
consideration of such joint resolution, further limiting the 
Committee's time for consideration.
    New section 802(e)(2)(B) limits total debate time in the 
House of Representatives on a joint resolution of approval to a 
mere two hours, divided evenly between those in support and 
those in opposition to the joint resolution. A motion to 
further limit debate is not debatable. Amendments to and 
motions to recommit the joint resolution as well as motions to 
reconsider the vote on the joint resolution are not in order.
    New section 802(f) concerns the instance when one House of 
Congress, before it passes a joint resolution of approval, 
receives a joint resolution of approval from the other chamber. 
In such an instance, the House that has not yet passed the 
joint resolution will continue following its procedures as if 
no joint resolution had been received from the other chamber, 
but the vote on final passage must be on the other chamber's 
joint resolution.
    New section 803 sets forth an expedited procedure for 
consideration of non-major rules. Our Committee does not have 
jurisdiction over this section.
    Although new section 805(a) prohibits judicial review of 
any determination, finding, action, or omission under the Act, 
subsection (b) clarifies that, notwithstanding subsection (a), 
a court may review an agency's compliance with the Act's 
requirements.
    New section 807 excepts from the Act's requirements any 
major or nonmajor rule that establishes, modifies, opens, 
closes, or conducts a regulatory program for a commercial, 
recreational, or subsistence activity related to hunting, 
fishing, or camping. Notably, this exception is not extended to 
other important matters such as those implicating critical 
public health and safety issues. With respect to a nonmajor 
rule, section 807 retains the exception for instances where an 
agency finds good cause that notice and procedure are 
impracticable, unnecessary, or contrary to the public interest.

                         CONCERNS WITH H.R. 10

           I. THE REINS ACT IS BASED ON FALSE PREMISES ABOUT 
                            REGULATORY COSTS

    Proponents of the REINS Act assert that Federal agency 
regulations impose excessive costs on businesses, stifle job 
creation, and hobble the Nation's economic growth. The facts 
are otherwise.

A.  The Benefits of Regulations Significantly Outweigh Their Costs

    In support of their arguments concerning the costs of 
regulation, proponents regularly cite\10\ a widely debunked 
study by economists Nicole and Mark Crain, which claims that 
Federal rulemaking imposes a cumulative burden of $1.75 
trillion a year.\11\
---------------------------------------------------------------------------
    \10\See, e.g., Unofficial Tr. of Markup of H.R. 10, the 
``Regulations of the Executive in Need of Scrutiny Act of 2011,'' by 
the H. Comm. on the Judiciary, 112th Cong., at 16 (Oct. 25, 2011).
    \11\Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs 
on Small Firms, Rep. No. SBAHQ-08-M-0466 (Sept. 2010), available at 
http://archive.sba.gov/advo/research/rs371tot.pdf.
---------------------------------------------------------------------------
    Critics of this study note its flawed assumptions and 
methodologies.\12\ For example, the Center for Progressive 
Reform (CPR) observed that the study does not account for any 
benefits of regulation.\13\ Additionally, CPR documented that 
the study did not rely on actual data on costs imposed by 
Federal regulation in the United States.\14\ Indeed, the CPR 
found that the Crain study's methodology was defective because, 
in calculating economic costs, it relied on World Bank 
international public opinion polling on how friendly a 
particular country was to business interests.
---------------------------------------------------------------------------
    \12\See REINS Act--Promoting Jobs and Expanding Freedom by Reducing 
Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial 
and Admin. Law of the H. Comm. on the Judiciary, 112th Cong. (2011) 
(statement of Sally Katzen, former OIRA Administrator); see also Sidney 
Shapiro et al., Setting the Record Straight: The Crain and Crain Report 
on 
Regulatory Costs (2011), available at http://www.progressivereform.org/
articles/SBA_
Regulatory_Costs_Analysis_1103.pdf.
    \13\Sidney Shapiro et al., Setting the Record Straight: The Crain 
and Crain Report on Regulatory Costs (2011), available at http://
www.progressivereform.org/articles/SBA_
Regulatory_Costs_Analysis_1103.pdf.
    \14\Id.
---------------------------------------------------------------------------
    Likewise, the independent, nonpartisan Congressional 
Research Service (CRS) criticized much of the Crain study's 
methodology.\15\ CRS reported that the authors of the study 
admitted that it was ``not meant to be a decision-making tool 
for lawmakers or Federal regulatory agencies to use in choosing 
the `right' level of regulation. In no place in any of the 
reports do we imply that our reports should be used for this 
purpose. (How could we recommend this use when we make no 
attempt to estimate the benefits?)'''\16\ CRS concluded that 
``a valid, reasoned policy decision can only be made after 
considering information on both costs and benefits'' of 
regulation.\17\
---------------------------------------------------------------------------
    \15\Congressional Research Service, Analysis of an Estimate of the 
Total Costs of Federal Regulations, R41763 (2011).
    \16\Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to 
the author of the CRS report).
    \17\Id. The Economic Policy Institute also issued a critique of the 
Crain study outlining similar concerns with the study's methodology and 
data. See John Irons & Andrew Green, Flaws Call for Rejecting Crain and 
Crain Model: Cited $1.75 Trillion Cost of Regulations Is Not Worth 
Repeating (2011), available at http://w3.epi-data.org/temp2011/
IssueBrief308.pdf.
---------------------------------------------------------------------------
    Further, the Office of Management and Budget (OMB) has 
annually estimated the costs of regulations, which have been 
substantially lower estimates than those reported in the Crain 
study. Significantly, OMB's reports to Congress include data on 
the benefits of regulations. The latest such report concluded 
that for fiscal year 2010, Federal regulations cost between 
$6.5 billion and $12.5 billion and generated between $18.8 
billion and $86.1 billion in benefits.\18\ According to OMB, 
the costs of regulations during the ten-year period from FY 
1999 through FY 2009 were between $43 billion and $55 billion, 
while their benefits ranged from $128 billion to $616 
billion.\19\ Therefore, even if one uses OMB's highest estimate 
of costs and its lowest estimate of benefits, the regulations 
issued over the past ten years have produced net benefits of 
$73 billion to our society. Such estimates were consistent 
across Democratic and Republican administrations.\20\ Given 
that the benefits of regulations consistently exceed the costs, 
the need for any legislation that would make the issuance of 
regulations more difficult or time consuming is certainly in 
question.
---------------------------------------------------------------------------
    \18\Office of Management and Budget, 2011 Report to Congress on the 
Benefits and Costs of Federal Regulations and Unfunded Mandates on 
State, Local, and Tribal Entities 21, available at http://
www.whitehouse.gov/sites/default/files/omb/inforeg/2011_cb/
2011_cba_report.pdf.
    \19\See REINS Act--Promoting Jobs and Expanding Freedom by Reducing 
Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial 
and Admin. Law of the H. Comm. on the Judiciary, 112th Cong. (2011) 
(statement of Sally Katzen, former OIRA Administrator).
    \20\Id.
---------------------------------------------------------------------------
    The benefits of regulation are also apparent when viewed 
through the lens of prevention. For example, a 2011 
Environmental Protection Agency report found that the public 
health benefits of clean air regulations far outweigh the 
compliance cost to industry.\21\ The report concluded that 
restrictions on fine particle and ground-level ozone pollution 
mandated by the 1990 Clean Air Act amendments would prevent 
230,000 deaths and produce benefits of about $2 trillion by 
2020.\22\
---------------------------------------------------------------------------
    \21\Environmental Protection Agency, Benefits and Costs of the 
Clean Air Act, Second Prospective Study--1990 to 2020 (2011) available 
at http://www.epa.gov/air/sect812/prospective2.html
    \22\Id.
---------------------------------------------------------------------------
    Alternatively, the costs of not regulating can be 
significant. The New York Times recently published a series of 
articles highlighting the danger of natural gas extraction 
practices that led to toxic contamination of the drinking water 
of potentially millions of people. This contamination was the 
result of a lack of regulation, often because regulatory 
authorities were fearful of confronting a lucrative and 
politically powerful industry.\23\
---------------------------------------------------------------------------
    \23\See Ian Urbina, Drilling Down: Regulation Lax as Gas Wells' 
Tainted Water Hits Rivers, N.Y. Times, Feb. 26, 2011; Ian Urbina, 
Drilling Down: Wastewater Recycling No Cure-All in Gas Process, N.Y. 
Times, Mar. 1, 2011; Ian Urbina, Drilling Down: A Tainted Water Well, 
and Concern There May Be More, N.Y. Times, Aug. 3, 2011 (investigative 
series on the dangers associated with the controversial natural gas 
drilling technique known as fracking).
---------------------------------------------------------------------------
    While a cost-benefit analysis of the current regulatory 
process clearly establishes the fact that the benefits well 
exceed the costs, the REINS Act itself will definitely result 
in more costs than benefits. The real costs of the REINS Act 
will be the resultant delay, uncertainty, and actual harm to 
the economy and society from the Congressional approval process 
dictated by the legislation. Highly beneficial rules will be 
delayed or even abandoned as a result of the failure of 
Congressional action. The benefit of imposing yet another 
significant procedural step before a major rule may become 
effective is ephemeral, evidenced by the fact that the CRA has 
only been used once to disapprove a rule in the 15 years it has 
been in effect.
    In an effort to quantify the cumulative benefits of major 
rules regarding air quality, water quality, and food safety, 
Representative Mike Quigley (D-IL) offered an amendment to have 
the independent, nonpartisan GAO conduct a study of this 
matter. Similarly, Representative Steve Cohen (D-TN) offered an 
amendment to exempt from H.R. 10's Congressional approval 
requirement any proposed rule that OMB determines would result 
in a net benefit to society. Both Members observed that when 
the benefits of a rule to society outweigh its costs, society 
has an interest in ensuring that the rule take effect without 
unnecessary delay.\24\ Representative Quigley's amendment 
failed by a vote of 12 to 21 and Representative Cohen's 
amendment also failed by a vote of 13 to 22.
---------------------------------------------------------------------------
    \24\Unofficial Tr. of Markup of H.R. 10, the ``Regulations of the 
Executive in Need of Scrutiny Act of 2011,'' by the H. Comm. on the 
Judiciary, 112th Cong., at 50, 119 (Oct. 25, 2011).
---------------------------------------------------------------------------

B.  Regulations Do Not Hinder Job Creation

    Proponents of H.R. 10 claim government regulations 
interfere with job creation because they create uncertainty for 
businesses, thereby preventing them from investing and 
hiring.\25\
---------------------------------------------------------------------------
    \25\See, e.g., Memorandum from Eric Cantor to House Republicans 
(Aug. 29, 2011) (on file with the House Majority Leader) available at 
http://majorityleader.gov/blog/2011/08/memo-on-upcoming-jobs-
agenda.html. (``By pursuing a steady repeal of job-destroying 
regulations, we can help lift the cloud of uncertainty hanging over 
small and large employers alike, empowering them to hire more 
workers.'').
---------------------------------------------------------------------------
    To the contrary, regulations have no determinable effect on 
job creation. For instance, a survey from the Bureau of Labor 
Statistics that tracks companies' reasons for large layoffs 
found that during the first and second quarters of 2011, 
144,746 layoffs were attributable to poor ``business demand,'' 
while only 1,119 were attributable to ``government 
regulations.''\26\
---------------------------------------------------------------------------
    \26\Bureau of Labor Statistics, Economic News Release, Extended 
Mass Layoffs (Quarterly) News Release (Aug. 10, 2011), available at 
http://www.bls.gov/news.release/archives/mslo_08102011.htm.
---------------------------------------------------------------------------
    Indeed, one of the Majority's own witnesses, during a 
recent hearing on another anti-regulatory bill, testified that 
when it comes to linking jobs and regulations, the ``focus on 
jobs . . . can lead to confusion in regulatory debates'' and 
that the employment effects of regulation ``are 
indeterminate.''\27\ Similarly, the National Federation of 
Independent Business's latest monthly survey of its members 
reveals that poor sales, not regulations, are by far the 
biggest deterrent to hiring.\28\ In addition, the Wall Street 
Journal's July 2011 survey of business economists found that 
``The main reason U.S. companies are reluctant to step up 
hiring is scant demand, rather than uncertainty over government 
policies, according to a majority of economists.''\29\
---------------------------------------------------------------------------
    \27\The Regulatory Accountability Act of 2011: Hearing on H.R. 3010 
Before the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of 
Christopher DeMuth, American Enterprise Instutute).
    \28\See William C. Dunkelberg & Holly Wade, NFIB Small Business 
Economic Trends (2011) available at http://www.nfib.com/Portals/0/PDF/
sbet/sbet201109.pdf.
    \29\See Phil Izzo, Dearth of Demand Seen Behind Weak Hiring, Wall 
St. J., July 18, 2011.
---------------------------------------------------------------------------
    According to Bruce Bartlett, an economist who worked in the 
Administrations of both Presidents Ronald Reagan and George 
H.W. Bush, the idea that cutting regulations will lead to 
significant job growth is ``just nonsense. It's just made 
up.''\30\ He further opined that ``regulatory uncertainty is a 
canard invented by Republicans that allows them to use current 
economic problems to pursue an agenda supported by the business 
community year in and year out. In other words, it is a simple 
case of political opportunism, not a serious effort to deal 
with high unemployment.''\31\
---------------------------------------------------------------------------
    \30\Bruce Bartlett, Misrepresentations, Regulations and Jobs, N.Y. 
Times, Oct. 4, 2011 available at http://economix.blogs.nytimes.com/
2011/10/04/regulation-and-unemployment.
    \31\Id.
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    Rather than hindering growth, regulations actually play a 
role in promoting job growth. A report by Northeast States for 
Coordinated Air Use Management (NESCAUM) demonstrates a direct 
correlation between environmental regulations and job growth in 
the Northeast. It found that by enacting stricter fuel economy 
standards and pursuing cleaner forms of energy, more jobs would 
be created.\32\ Specifically, NESCAUM found that stricter fuel 
economy standards and regulations governing cleaner forms of 
energy would increase employment from 9,490 to 50,700 jobs; 
increase gross regional product, a measure of the states' 
economic output, by $2.1 billion to $4.9 billion; and increase 
household disposable income increases by $1 billion to $3.3 
billion.\33\
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    \32\Northeast States for Coordinated Air Use Management (NESCAUM), 
Economic Analysis of a Program to Promote Clean Transportation Fuels in 
the Northeast/Mid-Atlantic Region (2011) (on file with Natural 
Resources Defense Council) available at http://switchboard.nrdc.org/
blogs/ngreene/CFS%20Economic%20Analysis%20Report%20INTERNAL.PDF.
    \33\Id.
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    According to a recent report from the Natural Resources 
Defense Council (NRDC), the United Auto Workers (UAW), and the 
National Wildlife Federation (NWF), vehicle emissions standards 
and clean vehicle research, development and production are 
already responsible for 155,000 jobs at 504 facilities in 43 
states and the District of Columbia.\34\ According to the same 
report, 119,000 jobs have been created in this industry since 
2009 alone.\35\
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    \34\Natural Resources Defense Council et al., Supplying Ingenuity: 
U.S. Suppliers of Clean, Fuel-Efficient Vehicle Technologies (2011), 
available at http://www.nrdc.org/transportation/autosuppliers/files/
SupplierMappingReport.pdf.
    \35\Id.
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    By preventing the promulgation of rules, the REINS Act 
would seriously stifle economic growth and the creation of new 
jobs. To highlight this issue, Representative Hank Johnson (D-
GA) offered an amendment during the Committee markup of H.R. 10 
to exempt from the bill's Congressional approval requirement 
any proposed rule that OMB determines would result in job 
growth.\36\ Representative Johnson's amendment, however, failed 
by a vote of 14 to 21.
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    \36\Unofficial Tr. of Markup of H.R. 10, the ``Regulations of the 
Executive in Need of Scrutiny Act of 2011,'' by the H. Comm. on the 
Judiciary, 112th Cong., at 62 (Oct. 25, 2011).
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II. THE REINS ACT IS UNNECESSARY BECAUSE CONGRESS ALREADY HAS OVERSIGHT 
                AUTHORITY OVER FEDERAL AGENCY RULEMAKING

    Congress already has various mechanisms at its disposal to 
oversee and influence the Federal agency rulemaking process. In 
its simplest and most straightforward form, Congress can 
delegate rulemaking authority to agencies with greater 
specificity or restriction, which would limit an agency's 
rulemaking authority either from the outset or through later 
amendment of an agency's organic statute. Indeed, Congress can 
simply pass legislation to stay the effect of an existing rule, 
as the House recently voted to do with respect to the 
Environmental Protection Agency's cement manufacturing 
standards.\37\
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    \37\Cement Sector Regulatory Relief Act of 2011, H.R. 2681, 112th 
Cong. (2011).
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    Further, Congress can impose restrictions on agency 
rulemaking through the appropriations process. These 
restrictions can take a variety of forms, including 
restrictions on the finalization of particular proposed rules, 
restrictions on regulatory activity within certain areas, 
restrictions on implementation or enforcement of certain rules, 
and conditional restrictions that prevent a rule from taking 
effect until an agency takes certain steps.\38\ For instance, 
no fewer than 19 out of the 67 amendments to H.R. 1, the 
``Full-Year Continuing Appropriations Act, 2011,'' were aimed 
at de-funding the promulgation or implementation of existing 
and proposed regulations.\39\
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    \38\See Congressional Research Service, Congressional Influence on 
Rulemaking and Regulation Through Appropriations Restrictions, RL 34354 
(2008).
    \39\These amendments primarily targeted environmental regulations 
and regulations implementing health care reform legislation. H.R. 1, 
112th Cong. (2011).
---------------------------------------------------------------------------
    Congress can also prescribe rulemaking procedures. Prior 
examples include the Administrative Procedure Act,\40\ which 
was enacted in 1946 to establish baseline procedures for 
rulemaking. Others include the Unfunded Mandates Reform 
Act,\41\ the Regulatory Flexibility Act,\42\ the Paperwork 
Reduction Act,\43\ and the Small Business Regulatory 
Enforcement Fairness Act,\44\ all of which added procedural and 
analytical requirements to the agency rulemaking process. In 
addition, the CRA already allows Congress to disapprove of an 
agency rule.
---------------------------------------------------------------------------
    \40\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2011).
    \41\2 U.S.C. Sec. Sec. 1501 et seq. (2011).
    \42\5 U.S.C. Sec. Sec. 601 et seq. (2011).
    \43\44 U.S.C. Sec. Sec. 3501 et seq. (2011).
    \44\Pub. L. No. 104-121, Sec. 242, 110 Stat. 847, 857 (1996).
---------------------------------------------------------------------------
    Finally, Congress can exert influence over rulemaking 
through its oversight activities, whether through periodic 
oversight hearings, GAO reports, or informal contacts with the 
agencies. Such oversight activity can ensure that agencies are 
subject to democratic accountability for their actions.

 III. THE REINS ACT WILL SEVERELY RESTRICT FEDERAL RULEMAKING, THEREBY 
UNDERMINING THE ABILITY OF AGENCIES TO PROTECT PUBLIC HEALTH AND SAFETY

    The REINS Act will severely restrict agency rulemaking by 
adding a significant procedural step to the rulemaking process 
and, through expedited procedures for Congressional 
consideration of major rules, will afford industry another 
opportunity to stop major rules from going into effect. In so 
doing, the REINS Act threatens agencies' ability to protect 
public health and safety.

A.  The Congressional approval requirement adds an unnecessary and 
        dangerous additional step to the rulemaking process for major 
        rules that will further ossify the rulemaking process and 
        create even more opportunities for private special interests to 
        intervene

    The REINS Act effectively acts as a chokehold on major 
Federal agency rulemaking by requiring Congressional assent to 
major rules before they can take effect. This approval process 
would be in addition to an already heavily proceduralized 
rulemaking process that often takes years to conclude. Worse 
yet, Congressional inertia would effectively constitute a veto 
of even critically needed rules.\45\
---------------------------------------------------------------------------
    \45\Regulations from the Executive in Need of Scrutiny Act of 2011: 
Hearing on H.R. 10 Before the Subcomm. on Courts, Commercial and Admin. 
L. of the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of 
David Goldston, Director of Government Affairs, Natural Resources 
Defense Council) (``Agencies often take several years to formulate a 
particular safeguard, reviewing hundreds of scientific studies, drawing 
on their own experts in science and economics, empaneling outside 
expert advisors, gathering thousands of public comments, and going 
though many levels of executive branch review'').
---------------------------------------------------------------------------
    Additionally, the REINS Act would allow well-subsidized 
business interests to further influence the rulemaking process. 
As a result of H.R. 10's Congressional approval mechanism, 
Congress will need to pass judgment on major rules often 
without the opportunity to make a well-informed decision about 
their merits. Major rules generally involve highly technical 
and complex scientific data as well as other types of evidence 
that require substantive expertise to decipher. Simply put, 
Congress lacks the time and the resources to provide meaningful 
review of such rules\46\ and it will be susceptible to well-
funded lobbying efforts by special interests.
---------------------------------------------------------------------------
    \46\Id.
---------------------------------------------------------------------------
    Adding to the concern about Congress's ability to provide 
meaningful review of major rules is the fact that Congress 
would have only 70 legislative days within which to act, and 
Committees of Jurisdiction would have only 15 legislative days 
to consider a proposed rule's merits. Moreover, floor time in 
each chamber is limited to just two hours of debate, evenly 
divided. As former OIRA Administrator Sally Katzen explained, 
``Experience during the 111th Congress compels the conclusion 
that there will not be time to consider and approve even the 
most worthy rules [under the REINS Act].''\47\
---------------------------------------------------------------------------
    \47\REINS Act--Promoting Jobs and Expanding Freedom by Reducing 
Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial 
and Admin. L. of the H. Comm. on the Judiciary, 112th Cong. (2011) 
(statement of Sally Katzen, former OIRA Administrator).
---------------------------------------------------------------------------
    This is not the first time that a congressional approval 
mechanism for agency rulemaking has been considered. In the 
early 1980's, Congress held a number of hearings on this 
concept\48\ and a bill was introduced that would have required 
affirmative Congressional assent to all major rules.\49\ 
Wisely, Congress chose not to pursue such a mechanism. Chief 
Justice John G. Roberts, Jr., when he was an Associate White 
House Counsel in 1983, criticized this legislation for 
``hobbling agency rulemaking by requiring affirmative 
Congressional assent to all major rules.''\50\ He further noted 
that such a provision ``would seem to impose excessive burdens 
on the regulatory agencies in a manner that could well impede 
the achievement of Administration objectives.''\51\
---------------------------------------------------------------------------
    \48\See Constitutional Amendment to Restore Legislative Veto: 
Hearing Before the Subcomm. on the Constitution of the S. Comm. on the 
Judiciary, 98th Cong. (1984); An Amendment to Sec. 13 of S. 1080, The 
Regulatory Reform Act, to Provide for Congressional Review of Agency 
Rules: Hearing Before the Subcomm. on Admin. Practice and Proc. of the 
S. Comm. on the Judiciary, 98th Cong. (1984); On the Impact of the 
Supreme Court Decision in the Case of Immigration and Naturalization 
Service v. Chadha Which Found the Legislative Veto Unconstitutional: 
Hearing Before the H. Comm. on Rules 98th Cong. (1983); Legislative 
Veto and the ``Chadha'' Decision: Hearing Before the Subcomm. on Admin. 
Practice and Proc. of the S. Comm. on the Judiciary 98th Cong. (1983); 
The Supreme Court Decision in INS v. Chadha and its Implications for 
Congressional Oversight and Agency Rulemaking: Hearing Before the 
Subcomm. on Admin. Law and Govt'l Rels. of the H. Comm. on the 
Judiciary, 98th Cong. (1983).
    \49\H.R. 3939, 98th Cong. Title II (1983). Then-Rep. Trent Lott (R-
MS) was the sponsor of this legislation, which was cosponsored by 79 
Members, all but five of them Republicans.
    \50\OMB Watch, Roberts Showed Prudence in Reg Reform Initiative 
(2005), available at www.ombwatch.org/node/2652; see also Alliance for 
Justice, Report on the Nomination of John G. Roberts to the United 
States Supreme Court 78, available at http://www.afj.org/
afj_roberts_prehearing_report.pdf (``In general, Judge Roberts 
disagreed with proposals to require Congress to approve regulations 
before they took effect. . . .'').
    \51\OMB Watch, Roberts Showed Prudence in Reg Reform Initiative 
(2005), available at www.ombwatch.org/node/2652.
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B.  By restricting rulemaking for major rules, the REINS Act threatens 
        public health and safety

    While the REINS Act is clearly unnecessary and unworkable, 
its most pernicious effect will be putting the health, welfare 
and safety of Americans at risk. In addition to the monetary 
benefits of regulations, regulations promote improved air 
quality, healthier children, reduced discrimination, protection 
of our public health and safety, protection of human dignity, 
and other non-quantifiable but fundamental values. The costs of 
delaying these highly beneficial rules could be substantial.
    The meltdown of the nuclear reactors at the Fukushima 
Daiichi power plant in Japan earlier this year in the aftermath 
of a devastating earthquake and tsunami illustrate the dangers 
of ineffective regulation. In response to the disaster, the 
U.S. Nuclear Regulatory Commission under the Atomic Energy 
Act\52\ promulgated six rules to increase safety of American 
nuclear reactor facilities. At a minimum, the REINS Act would 
delay the implementation of these rules. At worst, it could 
prevent them from ever going into effect.
---------------------------------------------------------------------------
    \52\42 U.S.C. Sec. Sec. 2011 et seq. (2011).
---------------------------------------------------------------------------
    As Representative Quigley observed at the Committee markup 
of H.R. 10, stronger, more effective regulations may have 
prevented various disasters, including the financial fraud 
committed by Enron; coal mine fires; the tragic commuter 
airline crash that occurred in Buffalo, New York; the financial 
crisis in Wall Street that resulted from deregulation of 
financial products; and contaminated food items such as 
cantaloupes, turkey, hamburgers and eggs that have caused 
numerous deaths. As he explained, regulations play a critical 
role in ensuring the safety of the bridges we drive across, or 
the water we drink, or the food we consume.\53\
---------------------------------------------------------------------------
    \53\Unofficial Tr. of Markup of H.R. 10, the ``Regulations of the 
Executive in Need of Scrutiny Act of 2011,'' by the H. Comm. on the 
Judiciary, 112th Cong., at 74-76 (Oct. 25, 2011).
---------------------------------------------------------------------------
    For example, three years ago, traces of the toxic chemical 
melamine were found in infant formula that was manufactured by 
an American company. It is likely that the REINS Act would have 
substantially delayed any corrective regulation issued in 
response to this contamination event. In response to this 
concern, Representative Sheila Jackson Lee (D-TX) offered an 
amendment at the Committee markup of H.R. 10 to exempt any 
proposed rule relating to infant formula, as defined by the 
Federal Food, Drug, and Cosmetic Act.\54\ Although 
Representative Jackson Lee emphasized the need to protect the 
most vulnerable, namely, infants,\55\ her amendment failed by a 
vote of 13 to 22. Similarly, Ranking Member John Conyers, Jr. 
(D-MI) offered an amendment to exempt from the bill any rule 
that protects or saves lives.\56\ This amendment also failed on 
party lines by a vote of 13 to 20.
---------------------------------------------------------------------------
    \54\Id. at 104.
    \55\Id.
    \56\Id. at 32.
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    Finally, the REINS Act, if enacted, would consume vast 
amounts of limited Congressional time and resources, which 
would necessarily have to be diverted from other critical 
legislative, oversight, and constituent responsibilities. In 
calendar year 2010 alone, Federal agencies issued 94 major new 
rules that would have been subject to the REINS Act's 
requirements.\57\ Meanwhile, there were only approximately 116 
legislative days in the House during that same time period. 
Under these constraints, there would not have been enough time 
for Congress to consider and approve even the most worthy rules 
while also fulfilling its other responsibilities. Even under 
expedited procedures, Congress would likely be forced to ignore 
other important duties, doing a further disservice to the 
American people.
---------------------------------------------------------------------------
    \57\Office of Information and Regulatory Affairs, Office of 
Management and Budget, available at http://www.reginfo.gov/public/do/
eoHistReviewSearch;jsessionid=9f8e89cb30d62463a3e4b86440 
60b5cee60195668b93.e34ObxiKbN0Sci0Lch8Ma3eKa30Re6fznA5Pp7ftolbGmkTy 
(last visited November 1, 2011).
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       IV. THE REINS ACT OFFENDS SEPARATION OF POWERS PRINCIPLES

    The REINS Act presents serious Constitutional concerns by 
offending separation of powers constraints in two respects: (1) 
by providing for what may be an unconstitutional one-House 
legislative veto; and (2) by effectively turning Congress into 
a ``super administrative agency.''
    Under H.R. 10's Congressional approval mechanism, one House 
of Congress can effectively veto an agency's rule by simply not 
acting within the 70-legislative-day time frame provided for in 
the bill. Such a mechanism would be, in effect, 
indistinguishable from the one-House legislative veto that the 
Supreme Court held to be unconstitutional in INS v. Chadha.\58\ 
The Court held in that decision that a veto of a Federal 
agency's legislative act was itself a legislative act that 
required passage by both Houses of Congress and presentment to 
the President for his signature.\59\ Under H.R. 10, one House 
could effectively veto agency rules without meeting the 
Constitutional requirements discussed in Chadha.
---------------------------------------------------------------------------
    \58\462 U.S. 919 (1983) (holding that a one-House legislative veto 
violated the Constitution's bicameralism and presentment clauses).
    \59\Id.
---------------------------------------------------------------------------
    Another possible separation of powers issue presented by 
the bill is that by making major rules effective only upon 
Congressional approval, the REINS Act turns major rules issued 
by Federal agencies into mere advisory rules. Through the REINS 
Act, Congress seeks to increase its own power over Executive 
Branch junctions and, in so doing, usurps a constitutional 
directive to the Executive Branch to ``take care that the laws 
be faithfully executed.''\60\
---------------------------------------------------------------------------
    \60\See Morrison v. Olson, 487 U.S. 654 (1988) (outlining tests for 
evaluating statutory schemes under separation of powers doctrine).
---------------------------------------------------------------------------

                               CONCLUSION

    H.R. 10 does nothing to create jobs or improve the economy. 
Instead, it throws sand in the gears of government by making it 
nearly impossible to enact important new regulations. By 
requiring that each House pass and the President sign each new 
major regulation, this misguided legislation will require 
Congress to expend time and expertise that it does not have, 
while increasing the opportunity for private interests to 
influence the process. This bill is not the solution for the 
many problems currently facing the American people.
    In fact, H.R. 10 is an unworkable solution to an artificial 
problem. There is no evidence that regulations stifle job 
creation. What we do know, however, is that regulations play a 
critical role in protecting the health of all Americans, 
ensuring the safety of our workers, promoting the integrity of 
our financial system, and preserving the environment. Delaying 
or thwarting these critical measures imperils our Nation's 
well-being. These are tangible benefits of regulations that far 
outweigh any perceived costs. Indeed, the Administration has 
expressed nearly identical concerns about similar legislation 
pending in the Senate. It stated that such legislation would 
``delay and, in many cases, thwart implementation of statutory 
mandates and execution of duly enacted laws, increase business 
uncertainty, undermine much-needed protections of the American 
public, and create unnecessary confusion. There is no 
justification for such an unprecedented requirement.''\61\
---------------------------------------------------------------------------
    \61\Executive Office of the President, Statement of Administration 
Policy on S. 1786, Long-Term Surface Transportation Extension Act of 
2011 (Nov. 3, 2011).
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    The REINS Act is not necessary because Congress already has 
myriad tools at its disposal, such as limiting delegations of 
authority to agencies, controlling agency appropriations, 
staying the effect of specific rules, and holding oversight 
hearings. These tools, unlike the REINS Act, do not trample the 
separation of powers and will not lead to government gridlock.
    For all of the foregoing reasons, we strongly oppose H.R. 
10 and we urge our colleagues to join us in opposition.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Mike Quigley.
                                   Ted Deutch.