H. Rept. 113-160 - REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2013113th Congress (2013-2014)
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113th Congress Rept. 113-160
HOUSE OF REPRESENTATIVES
1st Session Part 1
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REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2013
_______
July 19, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 367]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 367) 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, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 7
Background and Need for the Legislation.......................... 7
Hearings......................................................... 12
Committee Consideration.......................................... 12
Committee Votes.................................................. 12
Committee Oversight Findings..................................... 21
New Budget Authority and Tax Expenditures........................ 22
Congressional Budget Office Cost Estimate........................ 22
Duplication of Federal Programs.................................. 27
Disclosure of Directed Rule Makings.............................. 27
Performance Goals and Objectives................................. 27
Advisory on Earmarks............................................. 27
Section-by-Section Analysis...................................... 27
Changes in Existing Law Made by the Bill, as Reported............ 29
Committee Jurisdiction Letters................................... 45
Dissenting Views................................................. 49
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 2013''.
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. The report of the Comptroller
General shall include an assessment of the agency's compliance with
procedural steps required by paragraph (1)(B) and an assessment of
whether the major rule imposes any new limits or mandates on private-
sector activity.
``(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)(1) For purposes of this section, the term `joint resolution'
means only a joint resolution addressing a report classifying a rule as
major pursuant to section 801(a)(1)(A)(iii) that--
``(A) bears no preamble;
``(B) bears the following title (with blanks filled as
appropriate): `Approving the rule submitted by ___ relating to
___.';
``(C) includes after its resolving clause only the following
(with blanks filled as appropriate): `That Congress approves
the rule submitted by ___ relating to ___.'; and
``(D) is introduced pursuant to paragraph (2).
``(2) After a House of Congress receives a report classifying a rule
as major pursuant to section 801(a)(1)(A)(iii), the majority leader of
that House (or his or her respective designee) shall introduce (by
request, if appropriate) a joint resolution described in paragraph
(1)--
``(A) in the case of the House of Representatives, within
three legislative days; and
``(B) in the case of the Senate, within three session days.
``(3) A joint resolution described in paragraph (1) shall not be
subject to amendment at any stage of proceeding.
``(b) A joint resolution described in subsection (a) shall be
referred in each House of Congress to the committees having
jurisdiction over the provision of law under which the rule is issued.
``(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) In the House of Representatives, if any committee to which a
joint resolution described in subsection (a) has been referred has not
reported it to the House at the end of 15 legislative days after its
introduction, such committee shall be discharged from further
consideration of the joint resolution, and it shall be placed on the
appropriate calendar. On the second and fourth Thursdays of each month
it shall be in order at any time for the Speaker to recognize a Member
who favors passage of a joint resolution that has appeared on the
calendar for at least 5 legislative days to call up that joint
resolution for immediate consideration in the House without
intervention of any point of order. When so called up a joint
resolution shall be considered as read and shall be debatable for 1
hour equally divided and controlled by the proponent and an opponent,
and the previous question shall be considered as ordered to its passage
without intervening motion. It shall not be in order to reconsider the
vote on passage. If a vote on final passage of the joint resolution has
not been taken by the third Thursday on which the Speaker may recognize
a Member under this subsection, such vote shall be taken on that day.
``(f)(1) If, before passing a joint resolution described in
subsection (a), one House receives from the other a joint resolution
having the same text, then--
``(A) the joint resolution of the other House shall not be
referred to a committee; and
``(B) the procedure in the receiving House shall be the same
as if no joint resolution had been received from the other
House until the vote on passage, when the joint resolution
received from the other House shall supplant the joint
resolution of the receiving House.
``(2) This subsection shall not apply to the House of Representatives
if the joint resolution received from the Senate is a revenue measure.
``(g) If either House has not taken a vote on final passage of the
joint resolution by the last day of the period described in section
801(b)(2), then such vote shall be taken on that day.
``(h) 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 is
deemed to be 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 superseding other rules only where
explicitly so; and
``(2) with full recognition of the Constitutional right of
either House to change the rules (so far as they relate 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.
``(5) The term `submission date or publication date', except
as otherwise provided in this chapter, means--
``(A) in the case of a major rule, the date on which
the Congress receives the report submitted under
section 801(a)(1); and
``(B) in the case of a nonmajor rule, the later of--
``(i) the date on which the Congress receives
the report submitted under section 801(a)(1);
and
``(ii) the date on which the nonmajor rule is
published in the Federal Register, if so
published.
``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.''.
SEC. 4. BUDGETARY EFFECTS OF RULES SUBJECT TO SECTION 802 OF TITLE 5,
UNITED STATES CODE.
Section 257(b)(2) of the Balanced Budget and Emergency Deficit
Control Act of 1985 is amended by adding at the end the following new
subparagraph:
``(E) Budgetary effects of rules subject to section
802 of title 5, united states code.--Any rules subject
to the congressional approval procedure set forth in
section 802 of chapter 8 of title 5, United States
Code, affecting budget authority, outlays, or receipts
shall be assumed to be effective unless it is not
approved in accordance with such section.''.
SEC. 5. GOVERNMENT ACCOUNTABILITY OFFICE STUDY OF RULES.
(a) In General.--The Comptroller General of the United States shall
conduct a study to determine, as of the date of the enactment of this
Act--
(1) how many rules (as such term is defined in section 804 of
title 5, United States Code) were in effect;
(2) how many major rules (as such term is defined in section
804 of title 5, United States Code) were in effect; and
(3) the total estimated economic cost imposed by all such
rules.
(b) Report.--Not later than one year after the date of the enactment
of this Act, the Comptroller General of the United States shall submit
a report to Congress that contains the findings of the study conducted
under subsection (a).
Purpose and Summary
H.R. 367, the ``Regulations From the Executive in Need of
Scrutiny Act of 2013,'' also known as the REINS Act, reforms
the Congressional Review Act of 1996 (``CRA'').\1\ The CRA was
adopted to increase the accountability of Federal regulatory
agencies and the Congress by creating a fast-track legislative
process for Congress to overturn a final Federal regulation
within 60 days of the rule's publication in the Federal
Register. In the seventeen years since the CRA was adopted,
however, Federal regulatory agencies have issued over 60,000
regulations, including well over 1,000 major regulations, while
Congress has overturned only one regulation using the CRA. The
number of major regulations, moreover, has increased markedly
in recent years, and this trend shows no signs of abating. The
REINS Act reforms the CRA, insofar as the CRA applies to major
regulations. The REINS Act would require Congress to pass
within 60 days, and the President to sign, a joint resolution
approving a new major regulation issued by a regulatory agency
before the regulation could take effect.
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\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).
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Background and Need for the Legislation
I. INTRODUCTION
On January 23, 2013, Rep. Todd Young (R-IN) introduced H.R.
367, the ``Regulations From the Executive in Need of Scrutiny
Act of 2013'' (the ``REINS Act,'' or the ``Bill''). As
mentioned above, the REINS Act reforms the Congressional Review
Act to require congressional approval of major agency
regulations before the regulations can go into effect. Major
regulations are those that produce $100 million or more in
impacts on the U.S. economy, spur major increases in costs or
prices for consumers, or have significant adverse effects on
the economy.
The REINS Act passed the House as H.R. 10 during the 112th
Congress, on a bipartisan vote of 241-184. H.R. 367
reintroduced the previously passed text, with the exception
that it did not include one reporting requirement that was
added to H.R. 10 as a floor amendment. The Committee amended
the bill to add a requirement that reports by the Comptroller
General to the Congress on new major regulations assess whether
the regulations impose new limits or mandates on private sector
activity and to commission a study and report to Congress by
the Comptroller General on the number of regulations in effect
on the date of enactment, the number of major regulations in
effect on the date of enactment, and the total estimated
economic cost imposed by all such regulations.
II. BACKGROUND AND NEED FOR THE LEGISLATION
A. LHistory of the Congressional Review Act and the Need for Reform
The Congressional Review Act,\2\ part of the 1994
``Contract with America,'' sprung from a desire for more active
congressional control over a rapidly growing body of
administrative rules. Prior to the CRA, Congress had employed
other means to assert its authority over agencies, ranging from
ordinary oversight to the unicameral legislative veto mechanism
ruled unconstitutional in INS v. Chadha, 462 U.S. 919
(1983).\3\ These means, however, proved inadequate.
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\2\Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), P.L. 104-121, 110 Stat. 857-874, Subtitle E (codified at 5
U.S.C. secs. 801-808).
\3\The legislative veto was particularly popular from the early
1970's through 1983. Under this approach, an enabling statute sometimes
provided that rules promulgated under its authority were subject to
reversal if one or both of Houses of Congress passed a resolution
repealing the Executive Branch's action. In 1983, however, the Supreme
Court struck down the legislative veto in INS v. Chadha, 462 U.S. 919,
on the grounds that, when Congress acted ``legislatively,'' it had to
conform to the dictates of the Constitution's bicameralism and
presentment requirements (see Article I, section 7, clause 2). Because
the unicameral legislative veto was a legislative act that did not
adhere to these provisions, it violated the Constitutional design for
the separation of powers.
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To remedy this problem, the CRA established a mechanism for
Congress to review and disapprove Federal agencies' rules
through an expedited legislative process. Recognizing in light
of Chadha that Congress must conform to the Constitution's
requirements of bicameralism and presentment, the CRA required
that rules be disapproved by a joint resolution of both houses
which would then be presented to the President for signature.
In this way, the CRA follows the model of the Rules Enabling
Act (28 U.S.C. 2072, et seq.), under which the Supreme Court
has for many years promulgated rules of practice and procedure
and rules of evidence for the Federal courts, subject to review
that often has been exercised by Congress.
Despite its conceptual promise, the CRA has produced few
results. As of May 2008, for example, only 47 joint resolutions
of disapproval had been introduced in both houses of Congress,
relating to just 28 rules. During the same time period, Federal
agencies had promulgated 47,540 major and non-major rules. \4\
Since the CRA's enactment, it has only once been used
successfully to disapprove a rule.\5\ It is widely believed
that this one rule--an Occupational Safety and Health
Administration rule from the twilight of the Clinton
administration--was disapproved more because of the convergence
of special circumstances that are unlikely to recur
consistently, rather than as a reliable example of how the CRA
can effectively be used.\6\ Further, although joint resolutions
have in numerous cases been introduced to pressure agencies to
modify or withdraw their rules,\7\ as time shows that Congress
is unlikely to use the CRA to disapprove of rules, this use of
joint resolutions as a source of pressure becomes less and less
effective.
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\4\Congressional Research Service, Congressional Review of Agency
Rulemaking: An Update and Assessment of The Congressional Review Act
after a Decade, Report No. RL30116 (May 8, 2008).
\5\S.J. Res. 16, 107th Cong. (2001) (enacted).
\6\The OSHA ergonomic standards were controversial from the first
publication in 1992 of the initial proposal for a rulemaking. There was
Congressional opposition to the standards as well, which led to riders
prohibiting OSHA from promulgating proposed or final ergonomic rules
during fiscal years 1995, 1996 and 1998. OSHA issued its final standard
in 2000 after Congress was unable to pass another rider in that year's
appropriations. Shortly after the rule was issued and became effective,
control of the White House changed parties. Therefore, there was
control of both Houses of Congress and the presidency by the same
party, longstanding opposition of the rule by those in control of
Congress, and a President who was willing to seek the disapproval of a
rule enacted at the end of the term of a previous administration.
\7\The disapproval mechanism was utilized, for example, by Rep.
Wicker (R-MS) to achieve a compromise with OSHA regarding its rule
setting exposure limits on methylene chloride by introducing H.J. Res.
67, 105th Cong. (1997), to disapprove the OSHA rule. The introduction
of the resolution encouraged OSHA to negotiate with Rep. Wicker, who
was able to include a provision in the FY 1998 Labor, HHS and Education
appropriations requiring OSHA to provide on-site assistance for
companies to comply with the new rules.
---------------------------------------------------------------------------
The need for further reform is thus evident, and, since the
CRA's enactment, Congress has continued to consider initiatives
to foster greater congressional responsibility in the oversight
of agency rulemaking. The Subcommittee on Commercial and
Administrative Law, for example, held a hearing during the
104th Congress on the role of Congress in monitoring
administrative rulemaking.\8\ At the hearing, the Subcommittee
considered three bills that provided to varying degrees for
congressional approval of administrative rules before they
could become effective.\9\ Subsequently, CRA reform was a
prominent topic in the Commercial and Administrative Law
subcommittee's Administrative Law, Process and Procedure
Project for the 21st Century, which was highly active during
the 108th and 109th Congresses. The first recommendation for
CRA reform noted in the Subcommittee's interim report on the
project (``Interim Report'') was reform to require
congressional approval of agency rules before the rules could
become effective.\10\
---------------------------------------------------------------------------
\8\Role of Congress in Monitoring Administrative Rulemaking:
Hearing on H.R. 47, H.R. 2727, and H.R. 2990 Before the Subcomm. on
Commercial and Administrative Law of the House Comm. on the Judiciary,
104th Cong. 2nd Sess. 104-93 (1996).
\9\H.R. 47 (Rep. Taylor, R-NC); H.R. 2727 (Rep. Hayworth, D-AZ);
and H.R. 2990 (Rep. Smith, R-MI).
\10\House Judiciary Committee, Subcommittee on Commercial and
Administrative Law, Interim Report on the Administrative Law, Process
and Procedure Project for the 21st Century, Committee Print No. 10
(Dec. 2006) at 104.
---------------------------------------------------------------------------
As time has gone by, and particularly since the onset of
the Obama Administration, the need for CRA reform has become
all the more pressing. In 2009, Federal agencies promulgated
3,503 final rules, while Congress passed and the President
signed into law only 125 statutes.\11\ Last term, the Small
Business' Office of Advocacy reported that Federal rulemaking
imposed a cumulative burden of $1.75 trillion on our economy--a
figure that equaled fourteen percent of national income.\12\
Most recently, Douglas Holtz-Eakin, Ph.D., former Congressional
Budget Office Director and current head of the American Action
Forum, testified before the Subcommittee that, taking into
account the costs imposed by Obama Administration regulations
to date and those currently proposed, ``[d]uring the past 4
years, the cumulative regulatory cost burden has increased by
more than $520 billion[.]''\13\ Dr. Holtz-Eakin further
testified that:
---------------------------------------------------------------------------
\11\C. Wayne Crews, Jr., Ten Thousand Commandments: An Annual
Snapshot of the Federal Regulatory State, 2010 ed., Competitive
Enterprise Institute (April 15, 2010) at 2.
\12\Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs
on Small Firms, Report No. SBAHQ-08-M-0466 (Sept. 2010) at 6, 48.
\13\Statement of Douglas Holtz-Eakin at ``Hearing on the Obama
Administration's Regulatory War on Jobs, the Economy, and America's
Global Competitiveness,'' February 28, 2013, at 3, available at http://
judiciary.house.gov/hearings/113th/02282013/Holtz-Eakin%2002282013.pdf.
To put the $520 billion figure in perspective, it is
more than the combined gross domestic product of
Portugal and Norway, and there is little evidence 2013
will slow this pace. Based on a review of the 2012
Unified Agenda, AAF identified $123 billion in possible
regulations this year, based on only 40 regulations
(out of 2,387 active actions).\14\
---------------------------------------------------------------------------
\14\Id.
Many other regulations, moreover, will surely come under
the Administration--such as the many intended to implement the
Patient Protection and Affordable Care Act, P.L. 111-148, and
the Dodd-Frank Wall Street Reform and Consumer Protection Act,
Pub. L. 111-203. These regulations just as surely will add
large additional costs to the regulatory burden on U.S. job
creators and the U.S. economy. For example, on December 14,
2012, EPA issued a ``soot'' rule which, by its own estimates,
will cost between $53 million and $350 million per year. A week
later, EPA issued a rule to limit mercury and other emissions
from industrial boilers. That rule is expected to cost $1.4
billion to $1.6 billion a year. The President has also
suggested that EPA will revive its rule to tighten ozone
standards. That regulation is expected to cost up to $90
billion dollars annually. It also could render 650 counties
non-compliant under the Clean Air Act, leading to significant
negative impacts on business expansion and prospects for
economic growth in those areas. Meanwhile, through just July
31, 2010, a full 3,833 pages of Federal regulations had already
been issued under the Patient Protection and Affordable Care
Act.\15\ More have been issued since, and more are yet to come.
(The Congressional Research Service has identified 40
provisions in the Act that permit or require the issuance of
regulations.) Similarly, the Dodd-Frank Wall Street Reform and
Consumer Protection Act imposes a host of regulatory
obligations which agencies have yet to fulfill--it requires the
promulgation of 398 rules, of which only 136 have yet been
completed. That leaves 262 final rules to be done, of which
only 133 had even been proposed as of February 2013.
---------------------------------------------------------------------------
\15\A Pledge to America (Sept. 22, 2010) at 28 (``Pledge),
available at http://pledge.gop.gov.
---------------------------------------------------------------------------
An additional ground for concern is President Obama's
threat to use the regulatory system specifically to evade
Congress' legislative will. The President's climate change
agenda provides the most obvious example of this institutional
threat to Congress. The carbon cap-and-tax bill passed by the
House in the 111th Congress was estimated to create nearly
1,500 new regulations and mandates with costs estimated to be
well over a $1 trillion. Although that legislation failed in
the Senate, the U.S. Environmental Protection Agency pursued
unilaterally a regulatory agenda to accomplish the
legislation's goals. Since the November 2012 presidential
election, regulatory advocates have urged President Obama to
continue unilaterally to impose climate agenda requirements
through regulations. The President himself, in his 2013 State
of the Union Address, made manifest his intent to do just that.
B. LLegislative History of the REINS Act
During the first session of the 111th Congress, Rep. Geoff
Davis (R-Ky) first introduced the REINS Act, as H.R. 3765. Like
this term's H.R. 367 and last term's H.R. 10, and consistent
with the recommendation of the Subcommittee on Commercial and
Administrative Law's 2006 Interim Report, H.R. 3765 required
congressional approval of major rules but essentially preserved
the existing CRA process for non-major rules.
Through its reforms, the REINS Act effectively constrains
the delegation of Congressional authority by limiting the size
and scope of rulemaking permission. Once major rules are
drafted, they must be approved by both houses of Congress and
signed by the President, satisfying the bicameralism and
presentment requirements of the Constitution. This will
increase Congress' accountability for the content of Federal
legal requirements and foster more deliberation before the
Federal Government expands its reach into the lives of
Americans through added regulation. The Act also can be
expected to have a significant salutary effect on the
substantive quality of major Federal rules and agency
compliance with administrative law requirements before major
rules are promulgated and submitted to Congress. Finally,
although the Act does not change Congressional Review Act
procedures for review of non-major rules, it can be hoped that
the Act's impacts on the quality of major-rulemaking will
improve the overall culture of Federal rulemaking, elevating
the quality of non-major-rulemaking in the process.
H.R. 367 essentially replicates the text of the REINS Act
as passed by the House during the 112th Congress. As a result,
it includes revisions to the legislation, made during the Rules
Committee's markup of the bill, which post-date the Committee's
last review and markup of the legislation. These revisions
principally refine the parliamentary procedures for
introduction of, and consideration and floor action on, REINS
Act approval resolutions. See infra at 6 (amendments to 5
U.S.C. sec. 802). These revisions serve to maximize the
efficiency of the Act's parliamentary procedures and prevent
undue incursions on floor time needed for other legislative
business.
At the Subcommittee's March 5, 2013 hearing, Mr. James
Gattuso of the Heritage Foundation and Professor Eric Claeys of
the George Mason University School of Law testified in support
of H.R. 367. Professor Ronald Levin of the Washington
University School of Law testified against it. In summary, Mr.
Gattuso discussed the increasing burden of regulations on the
economy over the past several decades, the palpably greater
increase in major regulation experienced under the Obama
Administration to date, and the strong likelihood of
continuing, accelerated regulatory growth during the second
term of the Obama Administration. Mr. Gattuso presented his
view that the REINS Act represents a sound, effective,
manageable, and constitutional means to assure that the largest
new regulatory burdens are not placed on the people without the
approval of the people's elected representatives. He also
emphasized that the REINS Act is not inherently anti-regulatory
but simply assures that accountable, elected representatives
will have the final say over whether or not to impose a new
major rule. Prof. Claeys testified that the REINS Act
represented a constitutional means of providing for
Congressional approval of new major regulations, implementing
Congress' powers under Article 1, sec. 1, of the Constitution
and the Necessary and Proper Clause. He opined that the Act
would not run afoul of the Chadha rule against unicameral
legislative vetoes, in that the REINS Act itself would be
enacted bicamerally, followed by presentment to and signature
by the President, and any legislation--specifically, approval
resolutions--subsequently arising under the REINS Act would
also become law only following bicameral passage and
presentment to and signature by the President. Prof. Claeys
also emphasized that Justice Stephen Breyer and constitutional
law professor Laurence Tribe had in the past written that a
congressional approval mechanism for regulations, like that in
the REINS Act, would be constitutional. Prof. Levin proffered
his view that the REINS Act's constitutionality was at least
subject to question, in that the failure of an approval
resolution in either chamber of Congress would mean that the
regulation addressed by the resolution could not become
effective. Prof. Levin also testified that the additional work
required of Congress under the REINS Act would be too great,
and that Congress' role under the Bill would impede regulatory
agencies' fulfillment of their regulatory mandates.
Further background information on the REINS Act can be
found in the Judiciary Committee's and Rules Committee's
reports on H.R. 10 in the 112th Congress (H. Rept. 112-278,
Pts. 1 and 2, respectively).
Hearings
The Committee's Subcommittee on Regulatory Reform,
Commercial and Antitrust Law held 1 day of hearings on H.R.
367, on March 5, 2013. As mentioned above, testimony was
received from Mr. James Gattuso of the Heritage Foundation,
Professor Eric Claeys of the George Mason University School of
Law, and Professor Ronald Levin of the Washington University
School of Law, with additional material submitted by Rep. Andy
Barr (R-KY), Rep. Kevin Cramer (R-ND), the National
Cattlemans's Beef Association, and the Public Lands Council.
In addition, during the 112th Congress, the Subcommittee on
Courts, Commercial and Administrative Law held an oversight
hearing on the REINS Act on January 24, 2011, followed by a
legislative hearing on March 8, 2011. The testimony and
additional material received at these hearings is described in
the Committee's report on H.R. 10 in the 112th Congress (H.
Rept. 112-278).
Committee Consideration
On March 20, 2013, the Subcommittee on Regulatory Reform,
Commercial and Antitrust Law met in open session and ordered
the bill H.R. 367 favorably reported, without amendment, by a
vote of 6 to 3, a quorum being present. On April 11, 2013, the
Committee met in open session and ordered the bill H.R. 367
favorably reported with an amendment, by a rollcall vote of 20
to 9, 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 the
following rollcall votes occurred during the Committee's
consideration of H.R. 367.
1. Amendment #6, offered by Mr. Conyers. The Amendment
exempts from the REINS Act any rule ``relating to protection of
the public health or safety.'' The Amendment was defeated by a
rollcall vote of 16-15.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY)..............................
------------------------
Total...................................... 15 16
------------------------------------------------------------------------
2. Amendments #7 and #8, offered en bloc by Mr. Watt. The
Amendments exempt from the REINS Act any rule ``that is made
under the Dodd-Frank Wall Street Reform and Consumer Protection
Act'' and any rule made by the ``Director of the Consumer
Financial Protection Bureau pertaining to fraudulent mortgage
lending practices.'' The Amendments were defeated by a rollcall
vote of 17-15.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 15 17
------------------------------------------------------------------------
3. Amendment #9, 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 Management and Budget determines would result in greater
benefits than costs to society.'' The Amendment was defeated by
a rollcall vote of 14-11.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC).................................
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)...............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 11 14
------------------------------------------------------------------------
4. Amendment #10, offered by Ms. Jackson Lee. The Amendment
exempts from the REINS Act ``any rule that pertains to the
safety of any products specifically designed to be used or
consumed by a child under the age of 2 years.'' The Amendment
was defeated by a rollcall vote of 16-11.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)...............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 11 16
------------------------------------------------------------------------
5. Amendments #11 and #12, offered en bloc by Mr. Johnson.
The Amendments exempt from the REINS Act ``any rule that the
Administrator of the Office of Information and Regulatory
Affairs of the Office of Management and Budget determines would
result in net job growth'' and ``any rule that is intended to
protect the privacy of United States citizens.'' The Amendments
were defeated by a rollcall vote of 18-9.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member..........
Mr. Nadler (NY)................................
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 9 18
------------------------------------------------------------------------
6. Amendment #13, offered by Ms. Chu. The Amendment exempts
from the REINS Act ``any rule that pertains to protecting
schools and children from gun violence.'' The Amendment was
defeated by a rollcall vote of 17-10.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)...............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member..........
Mr. Nadler (NY)................................
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 10 17
------------------------------------------------------------------------
7. Amendment #14, offered by Mr. Garcia. The Amendment
exempts from the REINS Act ``any rule that pertains to fraud
under the Medicare and Medicaid programs under titles XVIII and
XIX, respectively, of the Social Security Act.'' The Amendment
was defeated by a rollcall vote of 17-9.
ROLLCALL NO. 7
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................
Mr. Holding (NC)...............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member..........
Mr. Nadler (NY)................................
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 9 17
------------------------------------------------------------------------
8. Amendment # 15, offered by Mr. Jeffries. The Amendment
exempts from the REINS Act ``any rule that pertains to
protection of the safety and soundness of the banking and
financial services industries of the United States.'' The
Amendment was defeated by a rollcall vote of 19-7.
ROLLCALL NO. 8
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)...............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member..........
Mr. Nadler (NY)................................
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 7 19
------------------------------------------------------------------------
9. Reporting H.R. 367 as amended. The bill will increase
accountability and transparency in the Federal regulatory
process. Reported by a rollcall vote of 20-9.
ROLLCALL NO. 9
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)...............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Rothfus (PA)............................... X
Mr. Conyers, Jr. (MI), Ranking Member..........
Mr. Nadler (NY)................................
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 20 9
------------------------------------------------------------------------
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. 367, 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, May 17, 2013.
Hon. Bob Goodlatte, 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. 367, the
``Regulations from the Executive in Need of Scrutiny Act of
2013.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sarah Masi,
who can be reached at 226-9010.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 367--Regulations From the Executive in Need of Scrutiny Act of
2013.
As ordered reported by the House Committee on the Judiciary
on April 11, 2013.
SUMMARY
Under current law, the Congress can prevent a rule from
taking effect by enacting a joint resolution of disapproval. In
contrast, H.R. 367 would require enactment of a joint
resolution of approval prior to any major rule taking effect.
Therefore, H.R. 367 would make the implementation of new major
regulations dependent on future legislation. Because CBO does
not assume enactment of subsequent legislation in estimating a
bill's effect on direct spending and revenues, this estimate
addresses the costs and savings that would be realized if
anticipated major rules do not take effect.
About 85 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. 367 would have significant 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. 367 also could have a
significant impact on spending subject to appropriation,
although we cannot determine the magnitude of that effect.
CBO expects that H.R. 367 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 the Congress and the
Comptroller General before they may take effect. Final rules
may be annulled by the Congress if a joint resolution of
disapproval is enacted into law. H.R. 367 would amend current
law by requiring the Congress to enact a joint resolution of
approval before any major rule may take effect, thereby making
implementation of major rules contingent on future
Congressional action.
The definition of a major rule, which was originally set by
the CRA and would be unchanged by H.R. 367, is any rule that
the Office of Management and Budget (OMB) finds has resulted in
or is likely to result in:
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 U.S.-based enterprises to compete with
foreign-based enterprises in domestic and export
markets.\1\
---------------------------------------------------------------------------
\1\See 5 USC Sec. 804(2).
H.R. 367 specifies special Congressional procedures and
explicit timelines for enacting a joint resolution of approval
for major rules. Under H.R. 367, if a joint resolution of
approval is not enacted within 70 legislative (or session) days
of receiving the major rule and accompanying report from a
Federal agency, the rule could not take effect. Further, the
Congress could not reconsider a joint resolution of approval
relating to that rule in the same Congress. However, a major
rule could take effect for one 90-calendar-day period without
Congressional approval if the President determines, via an
executive order, that the major rule was necessary for one of
four reasons: (1) to respond to an imminent threat to health or
safety, (2) to enforce criminal laws, (3) to protect national
security, or (4) to implement an international trade agreement.
Historical data show that Federal agencies published 68
major rules in 2012, and 85 major rules, on average, over the
past five full calendar years.\2\ Major rules published in
recent years include, for example, rules that required warnings
for cigarette packages and advertisements, set Medicare payment
rates for inpatient psychiatric facilities, and established
national emission standards for hazardous air pollutants from
industrial, commercial and institutional boilers. However,
looking to recent major rules as a way to estimate the number
of future major rules that would be affected by H.R. 367 may
not be a good guide to what would happen under the bill because
agencies might change course if it was enacted.
---------------------------------------------------------------------------
\2\GAO Federal Rules Database, http://www.gao.gov/legal/
congressact/fedrule.html.
---------------------------------------------------------------------------
Because major rules are issued to implement current law,
the budgetary effects of anticipated rules are reflected in
CBO's baseline projections, which are governed by section 257
of the Balanced Budget and Emergency Deficit Control Act of
1985 (Deficit Control Act). 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.
Under the Deficit Control Act, actions that are contingent
on future Congressional action are generally not included in
CBO's baseline projections. However, H.R. 367 would amend the
Deficit Control Act to require that CBO, in its baseline
projections, continue to assume that any planned major rule
will go into effect, unless the rule has already been
promulgated and the Congress has not enacted a resolution of
approval within the 70-day period that would be established
under the bill. (Without that provision amending the Deficit
Control Act, H.R. 367 would result in baseline projections that
would no longer reflect the budgetary impact of major rules.)
As a result, CBO's baseline projections would retain the
budgetary impact of major rules even though future
Congressional action would be necessary (under the bill) to
approve such rules. For example, if H.R. 367 is enacted,
baseline projections would continue to reflect the assumption
that payment rates for Medicare providers would rise over time
even though raising those rates would require future
Congressional action. Accordingly, a Congressional resolution
of approval for a major rule raising such rates would be
estimated as having no cost relative to CBO's baseline
projections. (If the Congress does not pass a joint resolution
of approval, then CBO's subsequent baseline projections would
be updated to exclude the budgetary impact of the proposed
rule.)
Impact on Direct Spending
H.R. 367 would prevent all major rules from taking effect
unless subsequent legislation is enacted. Because CBO does not
assume enactment of future legislation in estimating effects on
direct spending and revenues, in assessing the budgetary
effects of H.R. 367, CBO considered the costs and savings that
would be realized if anticipated major rules do not take
effect. The budgetary consequences of preventing major rules
from taking effect would vary tremendously because the
budgetary impact of different rules varies considerably. For
example, of the three rules mentioned above, only one--which
set Medicare payment rates for inpatient psychiatric
facilities--has a significant Federal budgetary impact.
Preventing some major rules from taking effect would result
in costs to the Federal Government, while preventing others
would result in savings. On net, CBO estimates that enacting
H.R. 367 would have a significant effect on direct spending,
but we cannot determine the magnitude or sign of those changes
for any year or period of years. Short-term effects would
largely result from: (1) preventing annual updates to payment
schedules for certain Medicare services and other routine
revisions to aspects of certain government programs, including
payment rate reductions scheduled to take place under the
Medicare physician fee schedule, and (2) altering the
implementation of new Federal programs with substantial budget
effects.
Routine Updates to Government Programs. Many major rules
that occur routinely are related to the government's health
care programs and in particular pertain to Medicare. Some
examples include rules that establish annual updates to payment
rates for services provided by hospitals, physicians, and other
Medicare providers. Enacting H.R. 367 would freeze payment
structures for those providers at current levels pending future
Congressional actions. Similarly, payment rates (such as the
annual benefit amount for each individual) under some other
Federal programs might also be frozen under the bill in the
absence of future Congressional actions. CBO cannot estimate
the net impact of all such changes.
Implementation of New Federal Programs. Enacting H.R. 367
could also affect the implementation of significant legislation
for which major rules have not been issued. For example,
enacting H.R. 367 could delay the implementation of new
initiatives aimed at making more electromagnetic spectrum
available for wireless services. As required by title VI of the
Middle Class Tax Relief and Job Creation Act of 2012, the
Federal Communications Commission (FCC) is developing proposed
rules for what are known as ``incentive auctions,'' for private
firms to voluntarily relinquish some or all of their existing
spectrum rights in exchange for a payment from the FCC. That
spectrum would then be available for new licensed uses.
Provisions in that act regarding the use of spectrum by Federal
agencies and the development of a wireless network for public
safety users are being implemented through rulemaking by the
Department of Commerce. Making implementation of those programs
contingent on future legislation would increase net direct
spending (by reducing auction receipts expected without further
Congressional actions) by several billion dollars over the
2014-2023 period, relative to current law.
Impact on Revenues
Enacting H.R. 367 would also affect tax 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 Spending Subject to Appropriation
H.R. 367 also would affect programs for which spending is
subject to the annual appropriation process. However, CBO
cannot determine the magnitude of that effect. For example, if
the major rules issued by the Environmental Protection Agency
were prevented from taking effect, there could be reductions in
spending for the agency, subject to appropriation action. A
second example involves annual calculations made by the
Department of Housing and Urban Development (HUD) of the fair-
market rents that it uses to determine rental subsidies for
low-income individuals. We expect that the bill would prohibit
those calculations from being implemented, which would prevent
the rental subsidy from being adjusted for changes in market
conditions. Any increase in rents would be paid for by the
tenant and not by HUD, and if tenants were unable to pay the
increased rent, some landlords would probably leave the
program.
The legislation also would require the Government
Accountability Office (GAO) to prepare a study on the rules and
their economic cost. Based on information from agencies and on
similar GAO reports, CBO estimates that completing the study
would cost less than $500,000 over the next few years.
Impact on Future Legislation
If H.R. 367 was enacted, the budgetary effects of planned
major rules would continue to be reflected in baseline
projections, unless a rule had already been promulgated and a
joint resolution of approval had not been enacted. Therefore, a
cost estimate for a joint resolution of approval for a major
rule would not 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 would take effect. However, if a
joint resolution of approval is not enacted, and CBO's baseline
projections are subsequently updated to reflect that inaction,
the costs or savings associated with that major rule would be
counted for budget enforcement purposes if a joint resolution
of approval is considered in a subsequent session of Congress.
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. 367 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. 367 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. Although 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 Masi
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
Duplication of Federal Programs
No provision of H.R. 367 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 367 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. 551.
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.
367 increases 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. 367 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
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title. This section provides the short
title of the bill, the ``Regulations From the Executive In Need
of Scrutiny Act of 2013.''
Section 2. Purpose. Section 2 establishes the purpose of
the REINS Act, which 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 Rulemaking. The
bill amends chapter 8 of title 5, U.S. Code, 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--
Subsection (a) describes the content and method of introduction
for a joint resolution of approval within 3 legislative or
session days (as applicable), and prohibits any amendments to
that joint resolution during its consideration. Subsection (b)
provides for the appropriate referral of the measure to
committees in both the Senate and House of Representatives.
Subsections (c) and (d) provide for expedited consideration
of the joint resolution in the Senate. In the Senate, a vote on
passage must occur within 15 session days after a committee is
discharged or reports the measure. A motion to proceed to the
joint resolution is in order anytime after the committees are
discharged or have reported. All points of order against the
joint resolution are waived. The motion to proceed is not
subject to amendment, a motion to postpone, or a motion to
proceed to other business. A motion to reconsider the vote on
the motion to proceed is not in order. If a motion to proceed
to a joint resolution is agreed to, debate on the joint
resolution (and all related motions and appeals) is limited to
2 hours. The joint resolution is not amendable, and motions to
postpone, motions to proceed to other business, and a motion to
recommit are not in order. All appeals from decisions of the
Chair regarding application of the Senate rules to procedure
relating to a joint resolution are decided without debate, and
a vote on final passage must occur after the conclusion of
debate on the joint resolution.
Subsection (e) provides for consideration of the joint
resolution in the House. Committees in the House must report
the joint resolution without amendment within 15 days after
referral, or they are automatically discharged from further
consideration. After the joint resolution is on the calendar
for at least 5 legislative days, the Speaker may recognize a
Member favoring passage of the joint resolution on the second
and fourth Thursdays of each month to call up the joint
resolution for immediate consideration. All points of order
against the resolution and its consideration are waived, and
the resolution is debatable for 1 hour. The bill prohibits
amendments, motions to recommit, and motions to reconsider. If
a vote on final passage of the joint resolution has not been
taken by the third Thursday on which the Speaker may recognize
a member for consideration of the joint resolution, the vote on
final passage will occur on that day.
Subsection (f) provides for the disposition of a joint
resolution by the other House. Notably, paragraph (2) provides
that the House does not have to vote on passage of a joint
resolution passed by the Senate if that joint resolution is a
revenue measure.
Subsection (g) provides that provides that, if either House
has not taken a vote on the final passage of a joint resolution
by the last day of the voting period established for the
resolution, then a vote shall be taken on that day.
Finally, subsection (h) provides that sections 802 and 803
are enacted as a rulemaking exercise and are deemed to be part
of the rules of each body with respect to the joint resolution
of approval, and supersedes other rules only where it
explicitly does so and that Congress reserves the right to
change these rules in the same manner as any other rule.
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 President's
veto). Section 803 also provides expedited procedural
mechanisms in the Senate.
804. Definitions--This section defines certain terms,
including `major rule' and `nonmajor rule'. It also provides
that rules of particular applicability, rules relating to
agency management, or rules relating to agency organization,
procedure or practice 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. The section does allow a
court to determine whether a Federal agency has completed REINS
Act requirements necessary for a rule to take effect, a
determination which would enable a court to determine if a suit
concerning the rule is ripe. In addition, the section provides
that ``[t]he 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.''
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.
Section 4. Budgetary Effects of Rules Subject to Section
802 of Title 5, United States Code. Provides for amendment of
section 257(b)(2) of the Balanced Budget and Emergency Deficit
Control Act of 1985 to add that rules subject to the
congressional approval procedure set forth in section 802 of
title 5 and ``affecting budget authority, outlays, or receipts
shall be assumed to be effective unless . . . not approved in
accordance with such section.''
Section 5. Government Accountability Office Study of Rules.
Commissions a study and report to Congress by the Comptroller
General on the number of regulations in effect on the date of
enactment, the number of major regulations in effect on the
date of enactment, and the total estimated economic cost
imposed by all such regulations.
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 italics, 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
[(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.
[Sec. 808. 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 which an agency for good cause finds
(and incorporates the finding and a brief statement of
reasons therefor 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.]
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. The
report of the Comptroller General shall include an assessment
of the agency's compliance with procedural steps required by
paragraph (1)(B) and an assessment of whether the major rule
imposes any new limits or mandates on private-sector activity.
(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)(1) For purposes of this section, the term ``joint
resolution'' means only a joint resolution addressing a report
classifying a rule as major pursuant to section
801(a)(1)(A)(iii) that--
(A) bears no preamble;
(B) bears the following title (with blanks filled
as appropriate): ``Approving the rule submitted by ___
relating to ___.'';
(C) includes after its resolving clause only the
following (with blanks filled as appropriate): ``That
Congress approves the rule submitted by ___ relating to
___.''; and
(D) is introduced pursuant to paragraph (2).
(2) After a House of Congress receives a report classifying
a rule as major pursuant to section 801(a)(1)(A)(iii), the
majority leader of that House (or his or her respective
designee) shall introduce (by request, if appropriate) a joint
resolution described in paragraph (1)--
(A) in the case of the House of Representatives,
within three legislative days; and
(B) in the case of the Senate, within three session
days.
(3) A joint resolution described in paragraph (1) shall not
be subject to amendment at any stage of proceeding.
(b) A joint resolution described in subsection (a) shall be
referred in each House of Congress to the committees having
jurisdiction over the provision of law under which the rule is
issued.
(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) In the House of Representatives, if any committee to
which a joint resolution described in subsection (a) has been
referred has not reported it to the House at the end of 15
legislative days after its introduction, such committee shall
be discharged from further consideration of the joint
resolution, and it shall be placed on the appropriate calendar.
On the second and fourth Thursdays of each month it shall be in
order at any time for the Speaker to recognize a Member who
favors passage of a joint resolution that has appeared on the
calendar for at least 5 legislative days to call up that joint
resolution for immediate consideration in the House without
intervention of any point of order. When so called up a joint
resolution shall be considered as read and shall be debatable
for 1 hour equally divided and controlled by the proponent and
an opponent, and the previous question shall be considered as
ordered to its passage without intervening motion. It shall not
be in order to reconsider the vote on passage. If a vote on
final passage of the joint resolution has not been taken by the
third Thursday on which the Speaker may recognize a Member
under this subsection, such vote shall be taken on that day.
(f)(1) If, before passing a joint resolution described in
subsection (a), one House receives from the other a joint
resolution having the same text, then--
(A) the joint resolution of the other House shall
not be referred to a committee; and
(B) the procedure in the receiving House shall be
the same as if no joint resolution had been received
from the other House until the vote on passage, when
the joint resolution received from the other House
shall supplant the joint resolution of the receiving
House.
(2) This subsection shall not apply to the House of
Representatives if the joint resolution received from the
Senate is a revenue measure.
(g) If either House has not taken a vote on final passage
of the joint resolution by the last day of the period described
in section 801(b)(2), then such vote shall be taken on that
day.
(h) 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 is deemed to be 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 superseding other rules only where explicitly so;
and
(2) with full recognition of the Constitutional
right of either House to change the rules (so far as
they relate 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.
(5) The term ``submission date or publication
date'', except as otherwise provided in this chapter,
means--
(A) in the case of a major rule, the date
on which the Congress receives the report
submitted under section 801(a)(1); and
(B) in the case of a nonmajor rule, the
later of--
(i) the date on which the Congress
receives the report submitted under
section 801(a)(1); and
(ii) the date on which the nonmajor
rule is published in the Federal
Register, if so published.
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.
* * * * * * *
----------
BALANCED BUDGET AND EMERGENCY DEFICIT CONTROL ACT OF 1985
* * * * * * *
PART C--EMERGENCY POWERS TO ELIMINATE DEFICITS IN EXCESS OF MAXIMUM
DEFICIT AMOUNT
* * * * * * *
SEC. 257. THE BASELINE.
(a) * * *
(b) Direct Spending and Receipts.--For the budget year and
each outyear, the baseline shall be calculated using the
following assumptions:
(1) In general.--Laws providing or creating direct
spending and receipts are assumed to operate in the
manner specified in those laws for each such year and
funding for entitlement authority is assumed to be
adequate to make all payments required by those laws.
(2) Exceptions.--(A)(i) No program established by a
law enacted on or before the date of enactment of the
Balanced Budget Act of 1997 with estimated current year
outlays greater than $50,000,000 shall be assumed to
expire in the budget year or the outyears. The scoring
of new programs with estimated outlays greater than
$50,000,000 a year shall be based on scoring by the
Committees on Budget or OMB, as applicable. OMB, CBO,
and the Budget Committees shall consult on the scoring
of such programs where there are differenes between CBO
and OMB.
(ii) On the expiration of the suspension of a
provision of law that is suspended under section 171 of
Public Law 104-127 and that authorizes a program with
estimated fiscal year outlays that are greater than
$50,000,000, for purposes of clause (i), the program
shall be assumed to continue to operate in the same
manner as the program operated immediately before the
expiration of the suspension.
(B) The increase for veterans' compensation for a
fiscal year is assumed to be the same as that required
by law for veterans' pensions unless otherwise provided
by law enacted in that session.
(C) Excise taxes dedicated to a trust fund, if
expiring, are assumed to be extended at current rates.
(D) If any law expires before the budget year or
any outyear, then any program with estimated current
year outlays greater than $50,000,000 that operates
under that law shall be assumed to continue to operate
under that law as in effect immediately before its
expiration.
(E) Budgetary effects of rules subject to
section 802 of title 5, united states code.--
Any rules subject to the congressional approval
procedure set forth in section 802 of chapter 8
of title 5, United States Code, affecting
budget authority, outlays, or receipts shall be
assumed to be effective unless it is not
approved in accordance with such section.
(3) Hospital insurance trust fund.--Notwithstanding
any other provision of law, the receipts and
disbursements of the Hospital Insurance Trust Fund
shall be included in all calculations required by this
Act.
* * * * * * *
Committee Jurisdiction Letters
LETTER FROM THE COMMITTEE ON THE BUDGET
RESPONSE FROM THE COMMITTEE ON THE JUDICIARY
LETTER FROM THE COMMITTEE ON RULES
RESPONSE FROM THE COMMITTEE ON THE JUDICIARY
Dissenting Views
INTRODUCTION
H.R. 367, the ``Regulations From the Executive in Need of
Scrutiny Act of 2013'' (REINS Act), is a seriously flawed
attempt to make the rulemaking process subject to increased
congressional oversight and accountability. The bill will
substantially delay and potentially prevent agency rulemaking--
at great risk to public health and safety--by requiring both
Houses of Congress and the President to approve all new major
rules (i.e., rules with an annual impact on the economy of at
least $100 million or having one of a number of economic
impacts) before they can take effect. The bill effectuates this
requirement by amending the Congressional Review Act (CRA).\1\
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\1\5 U.S.C. Sec. Sec. 801-08 (2013).
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By requiring congressional and presidential approval of all
major rules, H.R. 367 would essentially impose a procedural
``chokehold'' on Federal agency rulemaking. The bill undermines
the ability of agencies to provide essential protections to
Americans and thereby threatens public health and safety.
Regulations are critical to ensuring the safety and soundness
of virtually every facet of our lives, including clean air,
clean water, safe toys, safe cars, and safe workplaces. H.R.
367, however, would make it almost impossible for agencies to
issue rules implementing these critical protections.
Like nearly every other anti-regulatory measure that the
Committee has considered this Congress and during the previous
Congress, the REINS Act is a solution in search of a problem.
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. Congress even has the authority
under the CRA to disapprove any proposed rule.\2\ Worse yet,
H.R. 367 may result in an unconstitutional one-house
legislative veto.
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\2\5 U.S.C. Sec. 801(b) (2013).
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Recognizing that the REINS Act ``attempts to radically
alter the balance of power in government and jeopardize the
public interest,'' 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, Consumer Federation of America,
Consumers Union, the League of Conservation Voters, Public
Citizen, and the Union of Concerned Scientists--strongly
opposes the REINS Act.\3\ Additionally, 66 academics in the
fields of administrative and environmental law also opposed the
REINS Act in the previous Congress as being ``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.''\4\
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\3\The other organizations include: Alliance for Justice, American
Association of University Professors, American Federation of Teachers,
Americans for Financial Reform, American Rivers, American Values
Campaign, American Sustainable Business Council, BlueGreen Alliance,
Campaign for Contract Agriculture Reform, Center for Effective
Government, Center for Food Safety, Center for Foodborne Illness
Research and Prevention, Center for Independent Living, Center for
Science in the Public Interest, Citizens for Sludge-Free Land, Clean
Air Watch, Clean Water Network, Consortium for Citizens with
Disabilities, Countercorp, Cumberland Countians for Peace and Justice,
Demos, Economic Policy Institute, Edmonds Institute, Environment
America, Farmworker Justice, Free Press, Friends of the Earth, Green
for All, Health Care for America Now, In the Public Interest,
International Brotherhood of Teamsters, International Center for
Technology Assessment, International Union of United Automobile,
Aerospace, & Agricultural Implement Workers of America (UAW), Los
Angeles Alliance for a New Economy, Main Street Alliance, National
Association of Consumer Advocates, National Center for Healthy Housing,
National Consumers League, National Council for Occupational Safety and
Health, National Employment Law Project, National Lawyers Guild
Louisville Chapter, National Women's Health Network, National Women's
Law Center, Natural Resources Defense Council, Network for
Environmental & Economic Responsibility of the United Church of Christ,
New Jersey Work Environment Council, New York Committee for
Occupational Safety and Health, Oregon Peaceworks, People for the
American Way, Protect All Children's Environment, Reproductive Health
Technologies Project, Safe Tables Our Priority (S.T.O.P.), Service
Employees International Union, Southern Illinois Committee for
Occupational Safety and Health, The Arc of the United States, The
Partnership for Working Families, Trust for America's Health, U.S.
Camber Watch, U.S. PIRG, Union Plus, United Food and Commercial Workers
Union, United Steelworkers, Waterkeeper Alliance, Worksafe. See Letter
from Katherine McFate, President & CEO, OMB Watch, et al. to
Representative John Conyers, Jr., Ranking Member, H. Comm. on the
Judiciary (Apr. 11, 2013) (on file with H. Comm. on the Judiciary
Democratic staff). The American Association for Justice also opposes
the bill. Letter from Mary Alice McLarty, President, American
Association for Justice, to Representative John Conyers, Jr., Ranking
Member, H. Comm. on the Judiciary (Apr. 10, 2013) (on file with H.
Comm. on the Judiciary Democratic staff).
\4\See Letter from Prof. William L. Andreen, University of Alabama
School of Law, et al. to Members of the United States Senate and United
States House of Representatives (Mar. 14, 2011) (on file with H. Comm.
on the Judiciary Democratic staff).
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For the foregoing reasons and others discussed more fully
below, we must respectfully dissent and urge opposition to H.R.
367.
DESCRIPTION AND BACKGROUND
In addition to requiring both Houses of Congress and the
President to approve all new major rules before they can take
effect, H.R. 367 imposes an extensive series of procedural
mandates under the CRA as amended by this measure. A summary of
those provisions that are within the Committee's jurisdiction
follows. 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;\5\ (3) actions taken to comply with
the Unfunded Mandates Reform Act of 1995;\6\ and (4) any other
relevant information or requirement under any other act or
executive order. Pursuant to new section 801(a)(1)(C), each
House of Congress must provide copies of the report required by
section 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'').
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\5\5 U.S.C. Sec. Sec. 601 et seq. (2013).
\6\Pub. L. No. 104-4, 109 Stat. 48 (1995).
---------------------------------------------------------------------------
New section 801(a)(2)(A) requires the GAO to 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 section 801(a)(1)(B) as well as an assessment
of whether the major rule imposes any new limits or mandates on
private-sector activity. New section 801(a)(2)(B) specifies
that agencies must cooperate with the GAO in providing
information relevant to preparing its report required under
section 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., a nonmajor rule takes
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 3 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 proper perspective,
particularly the impact of expedited House procedures on
rulemaking. Subsections (c) and (d) detail the expedited Senate
procedures for consideration of joint resolutions of approval.
New section 802(e) outlines expedited procedures in the House
of Representatives for consideration of joint resolutions of
approval. The provision requires that if a Committee of
Jurisdiction does not act on a joint resolution of approval
within 15 legislative days, such resolution must be placed on
the floor calendar. On every second and fourth Thursday of a
month, a Member who supports a joint resolution that has been
on a calendar for at least five legislative days could call up
the resolution and have it considered immediately on the House
floor, with a limit of one hour of debate total, after which
the previous question shall be considered as ordered. A vote on
final passage must take place no later than the third eligible
Thursday under this subsection.
New section 802(f) addresses the situation where one
chamber of Congress, before it passes a joint resolution of
approval, receives a joint resolution of approval from the
other chamber. In such a situation, the chamber 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. Section 802(f) also clarifies
that it does not apply to the House in the case of joint
resolutions coming from the Senate regarding revenue measures.
New section 802(g) requires that if both chambers have failed
to take a vote on a joint resolution of approval within 70
legislative or session days, they must take such a vote on the
70th day.
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.
Section 5 of the bill requires the GAO to study how many
rules are in effect as of the enactment date, how many major
rules exist on such date, and the estimated total cost of such
rules. The GAO is required to report its findings to Congress
one year from the enactment date. This provision does not
address the many concerns with H.R. 367 and, in fact, would
only make a bad bill worse by taxing the GAO's already-limited
resources.
CONCERNS WITH H.R. 367
I. 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 numerous procedural hurdles to the rulemaking process
and, as a result of these unworkable procedures for
congressional consideration of major rules, well-financed
industry representatives will have greater opportunities to
stop major rules from going into effect. In so doing, the REINS
Act undermines the ability of agencies to protect public health
and safety.
A. LThe 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 more opportunities for private special interests to
intervene.
The REINS Act would effectively act as a chokehold on
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 typically takes years to conclude.
Under the new approval process imposed by the legislation,
congressional gridlock or deliberate inaction would serve as a
veto of even critically needed rules.\7\
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\7\H.R. 367, the REINS Act of 2013: Promoting Jobs, Growth, and
American Competitiveness: Hearing Before the Subcomm. on Regulatory
Reform, Commercial and Antitrust L. of the H. Comm. on the Judiciary,
113th Cong. (2013) [hereinafter ``REINS Act 2013 Hearing''] (statement
of Ronald M. Levin, William R. Orthwein Distinguished Professor of Law,
Washington University in St. Louis) [hereinafter ``Levin Statement'']
(``The reality is that the Act would in substance revive the
legislative veto as a tool for controlling agency rulemaking.'');
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) [hereinafter ``REINS
Act 2011 Legislative Hearing''] (statement of David Goldston, Director
of Government Affairs, Natural Resources Defense Council) [hereinafter
``Goldston Statement''] (``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'').
---------------------------------------------------------------------------
Notably, the REINS Act 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 100 major new
rules that would have been subject to the REINS Act's
requirements.\8\ Meanwhile, there were only 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. Under such expedited
procedures, Congress would likely be forced to choose between
passing judgment on complex regulations, on the one hand, and
other important duties, on the other.
---------------------------------------------------------------------------
\8\Maeve P. Carey & Curtis W. Copeland, REINS Act: Number and Type
of ``Major Rules'' in Recent Years, Congressional Research Service
Report for Congress, R 61651 (Dec. 2, 2011).
---------------------------------------------------------------------------
By requiring Congress to pass judgment on major rules
without the time or expertise to make a well-informed decision,
the REINS Act would allow well-subsidized business interests to
further influence the rulemaking process. 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.\9\ In the face of
this complexity, Members of Congress would be susceptible to
readily available ``answers'' from well-funded industry
lobbyists, who no doubt would readily supply Members with
industry-friendly talking points and other information
regarding the merits of a particular rule.\10\
---------------------------------------------------------------------------
\9\Levin Statement at 2 (``The REINS Act would impose great strain
on congressional workloads. In many instances, this would be a poor use
of scarce legislative time, because the subject matter of numerous
major rules is arcane and most prudently left to specialized
administrators.'').
\10\Goldston Statement at 3 (``Lobbyists would descend on Congress
with even greater fervor than is currently the case to pressure Members
to take their side on individual regulations.'').
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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, under the
bill's expedited House procedures, which limit floor
consideration of joint resolutions of approval to the second
and fourth Thursdays of every month, there would only be 6 days
remaining in 2013 for the House to consider major rules.
This is not the first time that Congress has considered a
congressional approval mechanism for agency rulemaking. In the
early 1980's, Congress held a number of hearings on this
concept\11\ and a bill was introduced that would have required
affirmative congressional assent to all major rules.\12\
Wisely, Congress chose not to pursue such a mechanism.
Tellingly, Chief Justice John G. Roberts, Jr., when he was an
Associate White House Counsel in 1983, criticized this idea
because it would ``hobbl[e] agency rulemaking by requiring
affirmative Congressional assent to all major rules.''\13\ 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.''\14\
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\11\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).
\12\H.R. 3939, 98th Cong. tit. II (1983). Then-Rep. Trent Lott (R-
MS) was the sponsor of this legislation, which was cosponsored by 79
Members, all but 5 of them Republicans.
\13\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/
afjXrobertsXprehearingXreport.pdf (`In general, Judge Roberts disagreed
with proposals to require Congress to approve regulations before they
took effect. . . .').
\14\OMB Watch, Roberts Showed Prudence in Reg Reform Initiative
(2005), available at www.ombwatch.org/node/2652.
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B. LBy restricting rulemaking for major rules, the REINS Act threatens
public health and safety and the Nation's financial stability.
While the REINS Act is unnecessary and unworkable, its most
pernicious effect will be putting the health, welfare and
safety of Americans at risk. In addition to the economic
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 devastating.
As the Administration noted in its opposition to the REINS Act
last Congress, the REINS Act 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.''\15\
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\15\Executive Office of the President, Statement of Administration
Policy on H.R. 10, Regulations from the Executive in Need of Scrutiny
Act of 2011 (Dec. 6, 2011).
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Addressing gun violence against children is just one
example of a pressing threat to public safety that agencies may
be tasked with addressing. According to the Brady Campaign to
Prevent Gun Violence, there were 14 instances of major school
shootings in the United States last year, including the
killings of 20 children and 6 staff at Sandy Hook Elementary
School in Newtown, Connecticut.\16\ Hopefully, legislation will
soon be enacted into law that will help prevent further
instances of gun violence directed at school children. More
than likely, that law will require affected agencies to issue
regulations to implement its provisions. There is absolutely no
reason to delay efforts to safeguard schools from gun violence,
which is exactly what the REINS Act would do by sending such
rules into the morass that the congressional legislative
process has become before such rules could take effect. To
remedy this concern, Representative Judy Chu (D-CA) offered an
amendment that would have exempted from the bill's
congressional approval requirement any proposed rule that
pertains to protecting schools and children from gun
violence.\17\ This amendment failed on a party-line vote of 10
to 17.\18\
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\16\Brady Campaign to Prevent Gun Violence, Major School Shootings
in the United States Since 1997, available at http://
www.bradycampaign.org/xshare/pdf/school-shootings.pdf.
\17\Unofficial Tr. of Markup of H.R. 367, the ``Regulations of the
Executive in Need of Scrutiny Act of 2013,'' by the H. Comm. on the
Judiciary, 113th Cong., at 130-133 (Apr. 11, 2013) [hereinafter
``Markup Transcript''].
\18\Id. at 141-142.
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Children face other threats that agencies must be able to
respond to without unnecessary delay. Four 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 and, more broadly, to protect the
safety of young children, Representative Sheila Jackson Lee (D-
TX) offered an amendment to exempt from H.R. 367's
congressional approval requirement any proposed rule pertaining
to the safety of any products specifically designed to be used
or consumed by a child under two years of age.\19\ Although
Representative Jackson Lee emphasized the need to protect the
most vulnerable members of our society, her amendment failed by
a vote of 11 to 16.\20\ Similarly, Ranking Member John Conyers,
Jr. (D-MI) offered an amendment to exempt from the
congressional approval requirement any rule that protects or
saves lives.\21\ This amendment also failed on a party-line
basis by a vote of 15 to 16.\22\
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\19\Id. at 98-102.
\20\Id. at 113.
\21\Id. at 29-33.
\22\Id. at 41.
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The dangerous consequences that can result from regulatory
failure also include enormous economic harm. For example, the
2008 financial crisis and resultant Great Recession were
largely caused by regulatory failure within the financial
services industry as a whole, and with respect to mortgage
lending practices, securitization, and derivatives in
particular. As a result of this failure, a home foreclosure
crisis unprecedented since the Great Depression occurred,
unemployment skyrocketed, and the Nation's economy to this day
suffers from the lingering after-effects. Rules that are
designed to protect the American economy from the harm caused
by the kind of reckless practices that an under-regulated
financial services industry engages in should not be held
hostage to the kind of political gridlock and industry
influence in Congress that the REINS Act would impose.
In response to insufficient regulation of financial
services, Congress passed the Dodd-Frank Wall Street Reform and
Consumer Protection Act,\23\ which established various new
standards to strengthen the safety and soundness of the
financial services industry and created the Consumer Financial
Protection Board (CFPB), all of which require numerous
implementing rules. Nevertheless, if the REINS Act were in
effect, industry would have significant opportunities to delay
and possibly derail Dodd-Frank's implementation.
---------------------------------------------------------------------------
\23\Pub. L. No. 111-203, 124 Stat. 1376 (2010).
---------------------------------------------------------------------------
In recognition of these concerns, Representative Mel Watt
(D-NC) offered two amendments exempting from the bill's
congressional approval requirement rules implementing the Dodd-
Frank Act and rules issued by the CFPB concerning mortgage
lending.\24\ These amendments, considered en bloc, were
defeated 15 to 17 on a party-line vote.\25\ Similarly,
Representative Hakeem Jeffries (D-NY) offered an amendment
exempting rules concerning the stability of banks and other
financial services institutions.\26\ This amendment was also
defeated by a 7 to 19 party-line vote.\27\
---------------------------------------------------------------------------
\24\Markup Transcript at 49-55.
\25\Id. at 84.
\26\Id. at 151-155.
\27\Id. at 162.
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Last fiscal year, the federal government recovered $4.2
billion from those who fraudulently billed government health
care programs such as Medicare and Medicaid.\28\ This kind of
fraud ultimately hurts both taxpayers and those who depend on
such programs. Particularly at a time when some are proposing
cuts to these essential safety net programs, rules that are
designed to prevent this kind of fraud are critical. For this
reason, Representative Joe Garcia (D-FL) offered an amendment
that would have exempted from the REINS Act's congressional
approval requirement rules concerning Medicare and Medicaid
fraud.\29\ This amendment was defeated by a 9 to 17 party-line
vote.\30\
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\28\Susan Kelly, U.S. Recovers $4.2 Billion From Healthcare Fraud
Probes: Report, Reuters, Feb. 11, 2013, available at http://
www.reuters.com/article/2013/02/11/us-healthcare-fraud-idUS
BRE91A0ZO20130211.
\29\Markup Transcript at 142-145.
\30\Id. at 151.
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Regulations can also play a critical role with respect to
protecting consumers' sensitive personal information. With the
increasing opportunities for governmental and private
organizations to obtain, maintain, and disseminate citizens'
sensitive, private information, it is critical that Congress
not prevent or delay the implementation of regulations designed
to safeguard such information. There is a real concern that
such personally identifiable information has itself become a
commodity with financial value, subject to abuse by those who
seek to sell it for financial gain or for criminal purposes.
Thanks to the largely unfettered use of Social Security numbers
and the availability of other personally identifiable
information through technological advances, data security
breaches are occurring with much greater frequency. In turn,
identity theft has swiftly evolved into one of the most
prolific crimes in the United States. According to a 2013
Federal Trade Commission report, identity theft ``is once more
the top complaint'' received by the agency.\31\ For these
reasons, Representative Hank Johnson (D-GA) offered an
amendment exempting from the REINS Act's congressional approval
requirement rules protecting Americans' privacy.\32\ The
amendment, however, was defeated 9 to 18 along party lines.\33\
---------------------------------------------------------------------------
\31\Press Release, Federal Trade Commission, FTC Releases Top 10
Complaint Categories for 2012--Identity Theft Tops List for 13th
Consecutive Year in Report of National Consumer Complaints (Feb. 26,
2013) (noting that out of more than two million complaints received by
the agency last year, 18 percent were related to identity theft),
available at http://www.ftc.gov/opa/2013/02/sentineltop.shtm.
\32\Markup Transcript at 114, 118-120.
\33\Id. at 129.
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II. 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. This
premise, however, is based on flawed data and completely
ignores the significant benefits of regulation.
A. LProponents rely on unreliable and flawed data regarding the cost of
regulation.
In support of their arguments concerning the costs of
regulation, proponents of anti-regulatory measures, such as the
REINS Act, regularly cite\34\ 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.\35\ Critics of this study note its flawed assumptions and
methodologies.\36\ For example, the Center for Progressive
Reform (CPR) observed that the study does not account for any
benefits of regulation.\37\ Additionally, CPR documented that
the study did not rely on actual data regarding the costs
imposed by Federal regulation in the United States.\38\ Indeed,
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.
---------------------------------------------------------------------------
\34\See, e.g., Markup Transcript at 68.
\35\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.
\36\See, e.g., 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/SBAX
RegulatoryXCostsXAnalysisX1103.pdf.
\37\Sidney Shapiro et al., Setting the Record Straight: The Crain
and Crain Report on Regulatory Costs (2011), available at http://
www.progressivereform.org/articles/SBAX
RegulatoryXCostsXAnalysisX1103.pdf.]
\38\Id.
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The independent, nonpartisan Congressional Research Service
(CRS) also criticized much of the Crain study's
methodology.\39\ 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?).''\40\ CRS concluded that
``a valid, reasoned policy decision can only be made after
considering information on both costs and benefits'' of
regulation.\41\
---------------------------------------------------------------------------
\39\Curtis W. Copeland, Congressional Research Service, Analysis of
an Estimate of the Total Costs of Federal Regulations, R41763 (2011).
\40\Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to
the author of the CRS report).
\41\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.
---------------------------------------------------------------------------
In a similar vein, a study by the American Action Forum
(AAF) claims that federal regulations added more than $236
billion in costs in 2012. As Professor Robert Glicksman of
George Washington University Law School testified, however, the
AAF study was flawed because it relied exclusively on ex ante
agency cost estimates and those estimates, in turn, rely
primarily on surveys of representative companies that will be
regulated by the rule at issue.\42\ Professor Glicksman noted
that these companies have an incentive to vastly overstate
estimated costs.\43\
---------------------------------------------------------------------------
\42\The Obama Administration's Regulatory War on Jobs, the Economy,
and America's Global Competitiveness: Hearing Before the Subcomm. on
Regulatory Reform, Commercial and Antitrust L. of the H. Comm. on the
Judiciary, 113th Cong. (2013) (statement of Robert L. Glicksman, J.B. &
Maurice C. Shapiro Professor of Environmental Law, The George
Washington University Law School).
\43\Id.
---------------------------------------------------------------------------
B. LThe benefits of regulations significantly outweigh their costs.
The Office of Management and Budget (OMB) has annually
estimated the costs of regulations. Significantly, OMB's
reports to Congress include data on the benefits of
regulations. The Draft 2012 Report to Congress on Benefits and
Costs of Federal Regulations finds that the net benefits of
regulations through the third fiscal year of the Obama
Administration exceed $91 billion, which is 25 times more than
the net benefits during the first three years of the George W.
Bush Administration.\44\ Similarly, its 2011 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.\45\ According to OMB,
the costs of regulations during the 10-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.\46\
Therefore, even if one uses OMB's highest estimate of costs and
its lowest estimate of benefits, the regulations issued over
the past 10 years have produced net benefits of $73 billion to
our society. Such estimates were consistent across Democratic
and Republican administrations.\47\
---------------------------------------------------------------------------
\44\Office of Management and Budget, Draft 2012 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/oira/
draft_2012_cost_benefit_
report.pdf.
\45\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/2011Xcb/
2011XcbaXreport.pdf.
\46\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).
\47\Id.
---------------------------------------------------------------------------
Given that the benefits of regulations consistently exceed
their costs, the need for any legislation that would make the
issuance of regulations more difficult or time-consuming is
questionable. 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.\48\ 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.\49\
---------------------------------------------------------------------------
\48\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.
\49\Id.
---------------------------------------------------------------------------
Alternatively, the costs of not regulating can be
significant. For example, as the New York Times noted in a
series of articles highlighting the danger of natural gas
extraction practices, such largely unregulated practices 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.\50\
---------------------------------------------------------------------------
\50\See 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); Ian Urbina, Drilling Down:
Wastewater Recycling No Cure-All in Gas Process, N.Y. Times, Mar. 1,
2011; Ian Urbina, Drilling Down: Regulation Lax as Gas Wells' Tainted
Water Hits Rivers, N.Y. Times, Feb. 26, 2011.
---------------------------------------------------------------------------
While a cost-benefit analysis of the current regulatory
process clearly establishes the fact that the benefits of
regulations well exceed their costs, the REINS Act itself will
definitely result in more costs than benefits. The real costs
of the REINS Act will be the harm to public health and safety
as well as the Nation's economy resulting from the uncertainty
and delay implicit in the convoluted congressional approval
process mandated by this legislation.
In an effort to highlight the benefits of major rules,
Representative Steve Cohen (D-TN) offered an amendment to
exempt from H.R. 367's congressional approval requirement any
proposed rule that OMB determines would result in a net benefit
to society. He 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.\51\
Representative Cohen's amendment, however, failed by a party-
line vote of 11 to 14.\52\
---------------------------------------------------------------------------
\51\Markup Transcript at 84-88.
\52\Id. at 97.
---------------------------------------------------------------------------
C. LRegulations do not hinder job creation
Proponents of H.R. 367 constantly claim that regulations
interfere with job creation because they create uncertainty for
businesses, thereby preventing them from investing and
hiring.\53\ 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.''\54\ Indeed, one of the Majority's own witnesses,
during a hearing on another anti-regulatory bill, testified
that when it came 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.''\55\ Similarly, a National Federation of
Independent Business survey of its members reveals that poor
sales, not regulations, are by far the biggest deterrent to
hiring.\56\ 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.''\57\
---------------------------------------------------------------------------
\53\See, e.g., Memorandum from Eric Cantor to House Republicans
(Aug. 29, 2011) 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.').
\54\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/msloX
08102011.htm.
\55\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).
\56\See William C. Dunkelberg & Holly Wade, NFIB Small Business
Economic Trends (2011) available at http://www.nfib.com/Portals/0/PDF/
sbet/sbet201109.pdf.]
\57\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.''\58\ 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.''\59\
---------------------------------------------------------------------------
\58\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.
\59\Id.
---------------------------------------------------------------------------
Rather than hindering job growth, regulations can play a
valuable 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.\60\ Specifically,
NESCAUM reported 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 by $1 billion to $3.3 billion.\61\
---------------------------------------------------------------------------
\60\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.
\61\Id.
---------------------------------------------------------------------------
According to a report from the Natural Resources Defense
Council, the United Auto Workers, and the National Wildlife
Federation, 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.\62\ The report also found that 119,000
jobs were created in this industry just between 2009 and 2011
alone.\63\
---------------------------------------------------------------------------
\62\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.]
\63\Id.
---------------------------------------------------------------------------
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 to exempt from the bill's
congressional approval requirement any proposed rule that OMB
determines would result in net job growth.\64\ Representative
Johnson's amendment, however, failed by a vote of 9 to 18 along
party lines.\65\
---------------------------------------------------------------------------
\64\Markup Transcript at 114, 115-118.
\65\Id. at 129.
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III. THE REINS ACT IS UNNECESSARY BECAUSE CONGRESS ALREADY HAS THE
TOOLS TO OVERSEE 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 did with respect to the Environmental Protection
Agency's cement manufacturing standards.\66\
---------------------------------------------------------------------------
\66\Cement Sector Regulatory Relief Act of 2011, H.R. 2681, 112th
Cong. (2011).
---------------------------------------------------------------------------
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.\67\ 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.\68\
---------------------------------------------------------------------------
\67\See Curtis W. Copeland, Congressional Influence on Rulemaking
and Regulation Through Appropriations Restrictions, Congressional
Research Service RL 34354 (Aug. 5, 2008).
\68\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,\69\ which
was enacted in 1946 to establish baseline procedures for
rulemaking. Others include the Unfunded Mandates Reform
Act,\70\ the Regulatory Flexibility Act,\71\ the Paperwork
Reduction Act,\72\ and the Small Business Regulatory
Enforcement Fairness Act,\73\ 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, thereby giving Congress yet another way to take
accountability for agency rules.
---------------------------------------------------------------------------
\69\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
(2013).
\70\2 U.S.C. Sec. Sec. 1501 et seq. (2013).
\71\5 U.S.C. Sec. Sec. 601 et seq. (2013).
\72\44 U.S.C. Sec. Sec. 3501 et seq. (2013).
\73\Pub. L. No. 104-121, Sec. 242, 110 Stat. 847, 857 (1996).
---------------------------------------------------------------------------
Finally, Congress can exert influence over rulemaking
through its oversight activities, whether by conducting
periodic oversight hearings, requesting GAO studies, or
conveying its concerns to the agencies. Such oversight actions
can ensure that agencies are subject to democratic
accountability for their actions.
IV. THE REINS ACT MAY BE UNCONSTITUTIONAL
The REINS Act raises constitutional concerns because it may
provide for what arguably is an unconstitutional one-House
legislative veto. As Professor Ronald Levin of Washington
University Law School testified, one House of Congress can
effectively veto an agency's rule under H.R. 367's
congressional approval mechanism by simply not acting within
the 70-legislative-day time frame provided for in the bill.\74\
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.\75\ In Chadha, the Court
held that a veto of a Federal agency's regulation was itself a
legislative act that required passage by both Houses of
Congress and presentment to the President for his
signature.\76\ Under H.R. 367, one House could effectively veto
an agency rule (i.e., a legislative act) without meeting the
Constitutional requirements discussed in Chadha by simply not
acting to pass a resolution of approval. The REINS Act,
therefore, may violate the constitutional rule announced in
Chadha.
---------------------------------------------------------------------------
\74\Levin Statement at 7.
\75\462 U.S. 919 (1983) (holding that a one-House legislative veto
violated the Constitution's bicameralism and presentment clauses).
\76\Id.
---------------------------------------------------------------------------
CONCLUSION
H.R. 367 would effectively make it nearly impossible for
important regulations to take effect. By requiring that each
House pass and the President sign a joint resolution of
approval for every new major regulation, this misguided
legislation will require Congress to expend time and expertise
that it does not have, while increasing the opportunity for
regulated entities to influence the rulemaking process.
This bill an unworkable solution to an artificial problem.
Regulations play a critical role in protecting the health of
all Americans, ensuring the safety of our workers, promoting
the stability of our financial system, and preserving the
environment. Delaying or thwarting these critical measures
imperils the well-being of all Americans. The tangible benefits
of regulations far outweigh any costs. Moreover, there is no
evidence that regulations stifle job creation, as H.R. 367's
proponents claim.
The REINS Act is not necessary because Congress already has
myriad tools at its disposal to shape agency rulemaking, such
as disapproving proposed rules, 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, are not
constitutionally suspect and will not lead to government
gridlock.
For all of the foregoing reasons, we strongly oppose H.R.
367 and we urge our colleagues to join us in opposition.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Pedro R. Pierluisi.
Judy Chu.
Ted Deutch.
Luis V. Gutierrez.
Karen Bass.
Cedric Richmond.
Suzan DelBene
Joe Garcia.
Hakeem Jeffries.