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114th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                      {      114-743

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



 
 REQUIRE EVALUATION BEFORE IMPLEMENTING EXECUTIVE WISHLISTS ACT OF 2016

                                _______
                                

 September 13, 2016.--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. 3438]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3438) to amend title 5, United States Code, to 
postpone the effective date of high-impact rules pending 
judicial review, 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..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     6
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................    11
New Budget Authority and Tax Expenditures........................    11
Congressional Budget Office Cost Estimate........................    11
Duplication of Federal Programs..................................    13
Disclosure of Directed Rule Makings..............................    13
Performance Goals and Objectives.................................    13
Advisory on Earmarks.............................................    13
Section-by-Section Analysis......................................    13
Changes in Existing Law Made by the Bill, as Reported............    14
Dissenting Views.................................................    15

                             The Amendment

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

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Require Evaluation before Implementing 
Executive Wishlists Act of 2016'' or as the ``REVIEW Act of 2016''.

SEC. 2. RELIEF PENDING REVIEW.

  Section 705 of title 5, United States Code, is amended--
          (1) by striking ``When'' and inserting the following:
  ``(a) In General.--When''; and
          (2) by adding at the end the following:
  ``(b) High-Impact Rules.--
          ``(1) Definitions.--In this subsection--
                  ``(A) the term `Administrator' means the 
                Administrator of the Office of Information and 
                Regulatory Affairs of the Office of Management and 
                Budget; and
                  ``(B) the term `high-impact rule' means any rule that 
                the Administrator determines may impose an annual cost 
                on the economy of not less than $1,000,000,000.
          ``(2) Identification.--A final rule may not be published or 
        take effect until the agency making the rule submits the rule 
        to the Administrator and the Administrator makes a 
        determination as to whether the rule is a high-impact rule, 
        which shall be published by the agency with the final rule.
          ``(3) Relief.--
                  ``(A) In general.--Except as provided in subparagraph 
                (B), an agency shall postpone the effective date of a 
                high-impact rule of the agency until the final 
                disposition of all actions seeking judicial review of 
                the rule.
                  ``(B) Failure to timely seek judicial review.--
                Notwithstanding section 553(d), if no person seeks 
                judicial review of a high-impact rule--
                          ``(i) during any period explicitly provided 
                        for judicial review under the statute 
                        authorizing the making of the rule; or
                          ``(ii) if no such period is explicitly 
                        provided for, during the 60-day period 
                        beginning on the date on which the high-impact 
                        rule is published in the Federal Register,
                the high-impact rule may take effect as early as the 
                date on which the applicable period ends.
          ``(4) Rule of construction.--Nothing in this subsection may 
        be construed to impose any limitation under law on any court 
        against the issuance of any order enjoining the implementation 
        of any rule.''.

                          Purpose and Summary

    H.R. 3438, the ``Require Evaluation before Implementing 
Executive Wishlists Act of 2016'' or the ``REVIEW Act of 
2016,'' amends the Administrative Procedure Act to require 
administrative stays of the effective dates of new regulations 
imposing one billion dollars or more in annual costs to the 
U.S. economy, if litigation to challenge the regulations is 
brought within statutorily specified periods for the initiation 
of such litigation.

                Background and Need for the Legislation

                              I. GENERALLY

    H.R. 3438 responds to situations like the United States 
Supreme Court's decision in Michigan v. EPA, 576 U.S. ___, 135 
S.Ct. 2699, 192 L.Ed.2d 674 (2015), and the adverse regulatory 
cost phenomena for which that case is emblematic.
    In Michigan v. EPA, the Court ruled against the U.S. 
Environmental Protection Agency, holding that its Utility MACT 
rule, which newly regulated air emissions from power plants, 
was legally infirm because the agency deemed costs irrelevant 
to its decision to promulgate the rule. Those costs totaled an 
estimated $9.6 billion per year, to achieve benefits in 
airborne mercury emissions of only $4-6 million per year.
    The Court, however, failed to set aside the rule, requiring 
the continuing incurrence of compliance costs pending remand to 
the court of appeals. Billions of additional dollars, moreover, 
had already been incurred by the power-generating industry 
under the unlawful rule, because the rule was not stayed by the 
courts pending the multi-year, ultimately successful legal 
challenge to the rule.
    The REVIEW Act would prevent such needless and wasteful 
expenditures to comply with unlawful, billion-dollar rules. To 
do so, it would require agencies, when they promulgate new 
rules determined by the Administrator of the Office of 
Information and Regulatory Affairs to impose $1 billion or more 
in costs on the economy, to provide that the rules will not 
become legally effective until after the conclusion of 
litigation challenging them, if the litigation is timely filed 
in the wake of the rules' publication. The Act would effectuate 
this reform by amending 5 U.S.C. sec. 705, the Administrative 
Procedure Act's provision authorizing agency or judicial stays 
of agency action pending judicial review. 705 currently leaves 
it wholly to the discretion of agencies and the courts to issue 
stays, whether for new billion-dollar rules or otherwise.
    The reform contained in the REVIEW Act has become 
increasingly needed in recent years. Historically, it was 
unusual for regulatory agencies to promulgate new regulations 
with estimated annual costs of $1 billion per year or more. 
Since the turn of the century, however, and particularly under 
the Obama administration, billion-dollar rules have become more 
and more frequent. As the American Action Forum summarized in 
2015:

        From 2006 to 2008, the nation averaged two of these 
        rules annually. From 2009 to present, this figure has 
        increased to roughly three per year. During the Obama 
        administration, these mega-rules have imposed total 
        annual costs of $65.1 billion, with a related 19.5 
        million paperwork burden hours.

                              *    *    *

        [T]hese rules are somewhat rare . . . but their impact 
        cannot be overstated. The five largest rules from [the 
        current] Administration have imposed an average of $6.7 
        billion in annual costs and more than $33.6 billion in 
        total annual burdens.\1\
---------------------------------------------------------------------------
    \1\Sam Batkins, The House on Regulation: Addressing Billion-Dollar 
Rules, American Action Form (Oct. 22, 2015) (available at http://
americanactionforum.org/insights/the-house-on-
regulation-addressing-billion-dollar-rules).

    As of today, based on available data, since 2005, there 
have been no fewer than 34 billion-dollar rules, including 24 
from the Obama administration, following a total of ten from 
the George W. Bush administration. These rules include the 
following:



    Although the courts, when rules are challenged judicially, 
have authority to issue stays pending review, testimony 
elicited at the Subcommittee on Regulatory Reform, Commercial 
and Antitrust Law's hearing on H.R. 3438 indicated that it is 
very difficult to obtain judicial stays and may be getting 
harder still.\2\ One case highlighted during the Subcommittee's 
hearing provides an instructive example of the consequences 
when courts do not issue stays in what ultimately is successful 
litigation to challenge a new rule:
---------------------------------------------------------------------------
    \2\Require Evaluation before Implementing Executive Wishlists 
(REVIEW) Act of 2015; and the Regulatory Predictability for Business 
Growth Act of 2015, Hearing before the H. Subcomm. on Reg. Reform, Com. 
and Antitrust Law, 114th Cong. 51 at 57 (2015) (Legislative Hrg.) 
(testimony of Jeffrey Bossert Clark, Sr., Esq.).

        In 2007, about $200 million in compliance investments 
        were stranded in the paper and wood products industry 
        when a court struck down the 2004 Boiler MACT rules 
        just 3 months before the compliance deadline. When the 
        rules were reissued in 2013, the new standards had 
        changed significantly, and previous investments proved 
        to be the wrong approaches to achieve compliance. 
        Wasting limited capital undermines the competitiveness 
        of U.S. businesses and impedes growth and job 
        creation.\3\
---------------------------------------------------------------------------
    \3\Legislative Hrg. at 26 (testimony of Paul R. Noe, Esq.).

    The reluctance of courts to issue judicial stays creates 
increasing difficulties for the economy and economic recovery 
that are particularly acute in the cases of billion-dollar 
rules. It also provides undesirable incentives for 
administrative agencies.
    For example, in Michigan v. EPA, the challenged rule 
imposed an estimated $9.6 billion in annual costs to achieve 
only $4-6 million in benefits. The Court ultimately found the 
rule unlawful, but, even then, did not set it aside, nor did 
the courts ever stay the rule pending review. As a result, 
after years of litigation that still have not been concluded, 
but during which compliance has been required, it may well be 
the case that over $50 billion in vitally-needed economic 
resources will be wasted on compliance with a rule that 
ultimately is discarded for legal insufficiency.
    Further, when agencies know that the courts may allow them 
to impose such levels of costs on regulated entities pending 
lengthy judicial reviews, it creates a dangerous incentive for 
agencies to impose more legally infirm, high-cost rules on the 
economy. In these circumstances, the agencies know that they 
may be able to leverage very high compliance expenditures by 
covered entities pending review to force the entities' ultimate 
acquiescence to the rules. This is because, once such costs are 
sunk into the regulated entities' cost structures, it can be 
difficult for these entities to face both a complete loss of 
those costs and the risk of totally new and still unpredictable 
costs to comply with the requirements of a successor rule.
    Testimony received by the Committee indicating that it is 
exceedingly hard for entities challenging new agency rules to 
obtain judicial stays, even against rules imposing a billion 
dollars or more in costs on the economy per year, is deeply 
troubling to the Committee. Indeed, testimony received 
suggested that summary denials of stay petitions, even during 
challenges to high-cost rules, is routine. It is the 
Committee's sincere hope that the REVIEW Act will provide an 
impetus to the courts to consider more deeply petitions for 
judicial stays filed by those who must bear the costs of new 
rules that impose high costs--particularly in light of the 
perverse incentive agencies have to impose even more costly 
rules, to leverage immediate and very high compliance costs to 
squelch opposition to the rules. The Committee's concern 
extends, at a minimum, to the many major rules issued each year 
that impose one hundred million dollars or more in annual costs 
per year, albeit less than one billion dollars per year. Many 
of these rules can impose several hundreds of millions of 
dollars or even over one billion dollars in compliance costs 
over their life cycles, or even during the course of several 
years of litigation. That the REVIEW Act does not require 
automatic administrative stays against these rules pending 
litigation does not mean that courts or agencies should assume 
Congress believes such stays, whether judicial or 
administrative, are not merited. On the contrary. The bill 
does, though, leave the question of whether to grant stays in 
such cases where it lies now, to the courts' and the agencies' 
case-by-case discretion, and subject to Congress' continuing 
oversight for needs for further reform.
    Amending the APA to include the REVIEW Act's important but, 
it is to be hoped for, only occasionally needed reform, would 
prevent such waste and preclude this undesirable incentive for 
agencies. It also would create a salutary incentive for 
agencies to devise new rules that achieve the similar levels of 
benefits for less than $1 billion in annual costs. Finally, the 
reform would be consistent with broadly applicable concepts 
long included in executive orders considering the rulemaking 
process. Executive Order 12866, for example, has since the 
Clinton administration highlighted the need for special care in 
the review and imposition of rules costing over $100 million 
annually, and has consistently encouraged agencies to tailor 
rules in the manner least burdensome to society.

                                Hearings

    On November 3, 2015, the Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law held a legislative hearing on H.R. 
3438. Witnesses at the hearing included: Mr. Edward Brady, 
President, Brady Homes of Illinois and Second Vice Chairman, 
National Association of Home Builders; Paul R. Noe, Esq., Vice 
President for Public Policy, American Forest & Paper 
Association; Jeffrey Bossert Clark, Sr., Esq., Partner, 
Kirkland & Ellis, LLP; and, Professor William W. Buzbee, 
Georgetown University School of Law.

                        Committee Consideration

    On September 8, 2016, the Committee met in open session and 
ordered the bill H.R. 3438 favorably reported, with an 
amendment, by a rollcall vote of 18 to 13, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3438.
    1. Amendment #2, offered by Mr. Conyers. The Amendment 
would carve out of the bill regulations that would provide for 
a reduction in the amount of lead in public drinking water. 
Defeated 11 to 15.

                             ROLLCALL NO. 1
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              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)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      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)...................................
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     11      15
------------------------------------------------------------------------


    2. Amendment #3, offered by Ms. Jackson Lee. The Amendment 
would carve out of the bill rules promulgated to prevent, 
respond to, or mitigate the adverse effects of public health 
emergencies such as the outbreak of the Zika and Ebola viruses. 
Defeated 14 to 14.

                             ROLLCALL NO. 2
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              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)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      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).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     14      14
------------------------------------------------------------------------


    3. Amendment #4, offered by Ms. DelBene. The Amendment 
would carve out of the bill rules that would increase college 
affordability. Defeated 14 to 15.

                             ROLLCALL NO. 3
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      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).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     14      15
------------------------------------------------------------------------


    4. Amendment #5, offered by Mr. Cicilline. The Amendment 
would carve out of the bill regulations that would reduce the 
cost of healthcare for a person over the age of 65. Defeated 13 
to 17.

                             ROLLCALL NO. 4
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      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)................................
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     13      17
------------------------------------------------------------------------


    5. Motion to report H.R. 3438 as amended favorably to the 
House of Representatives. Approved 18 to 13.

                             ROLLCALL NO. 5
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              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)................................
Mr. Gutierrez (IL).............................              X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Peters (CA)................................              X
                                                ------------------------
    Total......................................     18      13
------------------------------------------------------------------------


                      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. 3438, 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, September 12, 2016.
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. 3438, the ``REVIEW 
Act of 2016.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860
            Sincerely,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




                     H.R. 3438--REVIEW Act of 2016.

      As ordered reported by the House Committee on the Judiciary 
                         on September 8, 2016.




    H.R. 3438 would require Federal agencies to postpone the 
implementation of any rule imposing an annual cost on the 
economy of at least $1 billion if a petition seeking judicial 
review of that regulation is filed within 60 days of the rule 
taking effect. Under the bill, implementation would be 
postponed until any judicial review is resolved.
    An analysis of recent reports by the Office of Information 
and Regulatory Affairs within the Office of Management and 
Budget indicates that about five regulations are issued each 
year that would have an estimated annual impact on the economy 
of $1 billion or more. A delay in implementing such regulations 
could affect spending subject to appropriation, direct 
spending, and revenues. For example, implementing the 
legislation could affect when rules related to Federal 
entitlement programs or the collection of fees would take 
effect and those timing delays could either increase or 
decrease Federal spending and revenues. However, CBO has no 
basis for estimating how long such delays would last, how 
delays in the implementation of such rules would affect the 
regulatory process, or what effect they might have on the 
Federal budget.
    Because enacting the legislation could affect direct 
spending and revenues, pay-as-you-go procedures apply.
    CBO cannot determine whether enacting H.R. 3438 would 
increase net direct spending or on-budget deficits by more than 
$5 billion in any of the four consecutive 10-year periods 
beginning in 2027.
    H.R. 3438 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 3438 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. 3438 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 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. 
3438 prevents the waste of compliance costs under new but 
legally infirm regulations imposing one billion or more in 
costs on the U.S. economy, by requiring stays of such 
regulations if litigation challenging them is timely filed 
within statutorily specified periods.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3438 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 H.R. 3438 as reported by 
the Committee.
    Sec. 1. Short Title. Section 1 sets forth the short title 
of the bill as the ``Require Evaluation before Implementing 
Executive Wishlists Act of 2016,'' or the ``REVIEW Act of 
2016.''
    Sec. 2: Relief Pending Review. Section 2 amends section 705 
of title 5 to designate as ``high-impact'' rules those rules 
determined by the Administrator of the Office of Information 
and Regulatory Affairs to impose an annual cost on the economy 
of not less than $1 billion; requires agencies to submit new 
rules to the Administrator for the rendering of such 
determinations; requires agencies to publish such 
determinations with the rules; requires agencies to postpone 
the effective dates of high-impact rules until the end of 
litigation challenging the rules, if such litigation is filed 
within 60 days after the rules' publication or otherwise 
applicable statutory periods for the filing of litigation; and, 
sets forth a rule of construction that the legislation is not 
to be construed to limit the courts' discretion to issue 
judicial stays against the implementation of any rules.

         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, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


CHAPTER 7--JUDICIAL REVIEW

           *       *       *       *       *       *       *


Sec. 705. Relief pending review

     [When] (a)  In General._When an agency finds that justice 
so requires, it may postpone the effective date of action taken 
by it, pending judicial review. On such conditions as may be 
required and to the extent necessary to prevent irreparable 
injury, the reviewing court, including the court to which a 
case may be taken on appeal from or on application for 
certiorari or other writ to a reviewing court, may issue all 
necessary and appropriate process to postpone the effective 
date of an agency action or to preserve status or rights 
pending conclusion of the review proceedings.
    (b) High-Impact Rules.--
            (1) Definitions.--In this subsection--
                    (A) the term ``Administrator'' means the 
                Administrator of the Office of Information and 
                Regulatory Affairs of the Office of Management 
                and Budget; and
                    (B) the term ``high-impact rule'' means any 
                rule that the Administrator determines may 
                impose an annual cost on the economy of not 
                less than $1,000,000,000.
            (2) Identification.--A final rule may not be 
        published or take effect until the agency making the 
        rule submits the rule to the Administrator and the 
        Administrator makes a determination as to whether the 
        rule is a high-impact rule, which shall be published by 
        the agency with the final rule.
            (3) Relief.--
                    (A) In general.--Except as provided in 
                subparagraph (B), an agency shall postpone the 
                effective date of a high-impact rule of the 
                agency until the final disposition of all 
                actions seeking judicial review of the rule.
                    (B) Failure to timely seek judicial 
                review.--Notwithstanding section 553(d), if no 
                person seeks judicial review of a high-impact 
                rule--
                            (i) during any period explicitly 
                        provided for judicial review under the 
                        statute authorizing the making of the 
                        rule; or
                            (ii) if no such period is 
                        explicitly provided for, during the 60-
                        day period beginning on the date on 
                        which the high-impact rule is published 
                        in the Federal Register,
                the high-impact rule may take effect as early 
                as the date on which the applicable period 
                ends.
            (4) Rule of construction.--Nothing in this 
        subsection may be construed to impose any limitation 
        under law on any court against the issuance of any 
        order enjoining the implementation of any rule.

           *       *       *       *       *       *       *


                            Dissenting Views

                              INTRODUCTION

    H.R. 3438, the ``Require Evaluation before Implementing 
Executive Wishlists Act of 2016'' or the ``REVIEW Act of 
2016,'' would automatically stay the implementation of any rule 
that imposes an annual cost of more than $1 billion on the 
economy if an entity sought judicial review of such rule within 
certain time-frames. The bill is essentially an open invitation 
to anyone who opposes a proposed regulation to stay its 
implementation by seeking judicial review. As a result, H.R. 
3438 is yet another anti-consumer, anti-public health and 
safety measure intended to thwart the regulatory process, a 
process that is already very time-consuming and cumbersome. 
Rather than improving this process, the bill would lengthen it 
by years pending the outcome of a lawsuit, which could entail 
appeals that may ultimately need to be determined by the U.S. 
Supreme Court. Worse yet, the measure fails to include any 
exception for rules addressing emergent public health and 
imminent safety crises, such as the current Zika epidemic.
    As with other anti-regulatory measures that the Committee 
has considered this Congress, H.R. 3438 is dangerous solution 
to an undocumented problem. Courts already have adequate tools 
to stay poorly-designed rules through a well-calibrated test 
that serves the public interest. While regulatory stays are 
sometimes appropriate, the wholesale delay of high-impact rules 
upon the filing of even meritless litigation would upset this 
balanced and flexible approach designed to serve the public 
interest in favor of a standard that only benefits special 
interests.
    In recognition of these concerns, Coalition for Sensible 
Safeguards--an alliance of more than 150 consumer, labor, 
research, faith, and other public interest groups--strongly 
opposes this legislation, noting that the bill ``further tilts 
the regulatory process in favor of corporate special interests 
by creating more opportunities for the manipulation and abuse 
of the process to their benefit and at the expense of 
protecting consumers, working families, and other vulnerable 
communities.''\1\
---------------------------------------------------------------------------
    \1\Letter from the Coalition for Sensible Safeguards to Chairman 
Bob Goodlatte (R-VA) and Representative John Conyers, Jr. (D-MI), 
Ranking Member, Committee on the Judiciary (Sept. 7, 2016) (on file 
with Democratic staff of the H. Comm. on the Judiciary). Current 
members of the Coalition include: AFL-CIO; Alliance for Justice; 
American Association of University Professors; American Federation of 
State, County and Municipal Employees; American Federation of Teachers 
Americans for Financial Reform; American Lung Association; American 
Rivers; American Values Campaign; American Sustainable Business 
Council; BlueGreen Alliance; Campaign for Contract Agriculture Reform; 
Center for Effective Government; Center for Digital Democracy; Center 
for Food Safety; Center for Foodborne Illness Research & 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; Consumer Federation 
of America; Consumers Union; CounterCorp; Cumberland Countians for 
Peace & 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, United Automobile, 
Aerospace & Agricultural Implement Workers of America (UAW); League of 
Conservation Voters; 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 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; Public 
Citizen; Reproductive Health Technologies Project; Safe Tables Our 
Priority; Sierra Club; 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. Chamber Watch; U.S. PIRG; Union of Concerned 
Scientists; Union Plus; United Food and Commercial Workers Union; 
United Steelworkers; Waterkeeper Alliance; and Worksafe. Coalition for 
Sensible Safeguards, Our Members (last visited on Sept. 10, 2016), 
http://sensiblesafeguards.org/about-us/members/.
---------------------------------------------------------------------------

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    When ``justice so requires,'' section 705 of the 
Administrative Procedure Act (APA) authorizes agencies to 
postpone the effective date of a rule pending judicial 
review.\2\ Courts may also stay the effective date of a rule 
under ``such conditions as may be required and to the extent to 
prevent irreparable harm.''\3\ H.R. 3438 amends section 705 in 
several respects. First, the bill establishes a new section 
705(b) of the APA that would prohibit a final ``high-impact 
rule'' (defined as a rule that imposes an annual cost on the 
economy in excess of $1 billion) from being published or taking 
effect until the Administrator of the Office of Information and 
Regulatory Affairs (OIRA) determines whether the rule qualifies 
as a high-impact rule. Such determination would have to be 
published in the Federal Register by the agency together with 
the final rule. Second, the bill would require an agency to 
postpone the effective date of any high-impact rule until the 
final disposition of all actions seeking judicial review of it. 
Third, the bill provides if no person seeks judicial review of 
a high-impact rule either: (1) within any period explicitly 
provided for judicial review under applicable law; or (2) 
during the 60-day period beginning on the date the high impact 
rule is published in the Federal Register, then the rule can 
take effect as soon as the applicable period ends.
---------------------------------------------------------------------------
    \2\5 U.S.C. Sec. 705 (2016).
    \3\5 U.S.C. Sec. 705 (2016).
---------------------------------------------------------------------------

                               BACKGROUND

I. Overview of Federal Rulemaking
    Federal regulations impact nearly every aspect of our lives 
and are ``one of the basic tools of government used to 
implement public policy.''\4\ Enacted in 1946, the 
Administrative Procedure Act (APA) establishes the minimum 
rulemaking and formal adjudication requirements for all 
administrative agencies.\5\ The APA's baseline procedural 
requirements serve to maintain a balance between agency 
flexibility and the requirements of due process. As 84 leading 
administrative law academics have observed, ``The APA has 
served for nearly 70 years as a kind of Constitution for 
administrative agencies and the affected public--flexible 
enough to accommodate the variety of agencies operating under 
it and the changes in modern life.''\6\ In addition to the APA, 
numerous other procedural and analytical requirements have been 
imposed on the rulemaking process by Congress and various 
presidents.\7\ These requirements focus ``predominately on 
agencies' development of new rules,'' according to the 
Government Accountability Office (GAO).\8\
---------------------------------------------------------------------------
    \4\Curtis W. Copeland, Cong. Research Serv., RL 32240, The Federal 
Rulemaking Process: An Overview 1 (2005).
    \5\The APA defines ``rulemaking'' as the ``agency process for 
formulating, amending or repealing a rule.'' 5 U.S.C. Sec. 551(5) 
(2016). A ``rule'' is defined as ``an agency statement of general or 
particular applicability and future effect designed to implement, 
interpret, or prescribe law or policy or describing the organization, 
procedure, or practice requirements of an agency.'' 5 U.S.C. 
Sec. 551(4) (2016).
    \6\Letter from 84 administrative law academics to H. Judiciary 
Comm. Chair Bob Goodlatte (R-VA) and H. Judiciary Comm. Ranking Member 
John Conyers, Jr. (D-MI), 2 (Jan. 12, 2015) (on file with the H. Comm. 
on the Judiciary, Democratic staff).
    \7\Examples of legislative mandates include the Unfunded Mandates 
Reform Act, Pub. L. No. 104-4 (1995); the Regulatory Flexibility Act, 
Pub. L. No. 96-354, 94 Stat. 1164, 1169 (1980); and the Congressional 
Review Act, Pub. L. No. 104-121 (1996). In addition, both Republican 
and Democratic Presidents have issued executive orders mandating 
additional procedural and analytical requirements for Federal 
rulemakings. See, e.g., Exec. Ord. No. 12,866, 58 Fed. Reg. 190 (Sept. 
30, 1993) (outlining requirements for cost-benefit analysis and review 
by the Office of Information and Regulatory Affairs for significant 
rules issued by executive branch agencies).
    \8\U.S. Gov't Accountability Office, GAO-07-791, Reexamining 
Regulations: Opportunities Exist to Improve Effectiveness and 
Transparency of Retrospective Reviews 1 (2007).
---------------------------------------------------------------------------
    In general, proposed rules go through an extensive vetting 
process that many believe is already too ossified and burdened 
by delay.\9\ The APA defines ``rulemaking'' as the ``agency 
process for formulating, amending or repealing a rule.''\10\ 
The process for informal rulemaking, commonly referred to as 
notice-and-comment rulemaking, is outlined in section 553 of 
the APA, and is the process that agencies follow for 
promulgating the rules in the overwhelming majority of 
cases.\11\
---------------------------------------------------------------------------
    \9\See, e.g., Richard J. Pierce, Jr., Rulemaking Ossification Is 
Real: A Response to Testing the Ossification Thesis, 80 Geo. Wash. L. 
Rev. 1493 (2012); H.R. 348, the ``Responsibly And Professionally 
Invigorating Development Act of 2015'' (RAPID Act); H.R. 712, the 
``Sunshine for Regulatory Decrees and Settlements Act of 2015;'' and, 
H.R. 1155, the ``Searching for and Cutting Regulations that are 
Unnecessarily Burdensome Act of 2015'' (SCRUB Act): Hearing Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 114th Cong. 1, 4-5 (2015) (statement of Amit 
Narang, Regulatory Policy Advocate, Public Citizen), http://
judiciary.house.gov/_cache/files/cfc2a8c6-729e-4e77-9f9f-561f60f1c153/
narang-
testimony.pdf.
    \10\5 U.S.C. Sec. 551(5) (2016).
    \11\5 U.S.C. Sec. 553 (2016). Agencies may also choose or may be 
required by statute to use other rulemaking procedures, including 
formal rulemaking, negotiated rulemaking, and hybrid or expedited 
approaches, which generally tend to have greater procedural 
requirements and be subject to stricter judicial review than section 
553 notice-and-comment rulemaking. Though rarely used, agencies must 
sometimes follow the APA's formal rulemaking procedures ``when rules 
are required by statute to be made on the record after opportunity for 
an agency hearing.'' 5 U.S.C. Sec. 553(c) (2016).
---------------------------------------------------------------------------
    In the informal notice-and-comment rulemaking process, 
agencies are required to provide the public with adequate 
notice of a proposed rule and a meaningful opportunity to 
comment on the rule's content.\12\ A notice is ``adequate'' if 
an agency publishes a notice of proposed rulemaking in the 
Federal Register and the notice contains the time, place, and 
nature of public rulemaking proceedings, reference to the legal 
authority under which the rule is proposed, and either the 
terms or substance of the proposed rule or a description of the 
subjects and issues involved.\13\ With respect to the required 
public comment period, the agency must provide the public with 
the opportunity to submit written ``data, views, or 
arguments.''\14\ There is no minimum time period during which 
an agency must accept comments, but courts reviewing an 
agency's compliance with this APA requirement inquire as to 
whether the opportunity to comment was ``adequate,'' which may 
inform how long the comment period should be for a given rule.
---------------------------------------------------------------------------
    \12\5 U.S.C. Sec. 553(b), (c) (2016).
    \13\5 U.S.C. Sec. 553(b) (2016).
    \14\5 U.S.C. Sec. 553(c) (2016).
---------------------------------------------------------------------------
    After the comment period closes, the agency must consider 
the public's comments and incorporate into the adopted rule a 
``concise general statement'' of the ``basis and purpose'' of 
the final rule.\15\ From this general statement, the public 
should be able to obtain a general idea of the purpose of and 
basic justification for the rule. The final rule and the 
general statement must be published in the Federal Register not 
less than 30 days before the rule's effective date.\16\
---------------------------------------------------------------------------
    \15\Id.
    \16\5 U.S.C. Sec. 553(d) (2016). The APA exempts from all of its 
informal rulemaking requirements rules relating to certain subject 
matter areas. These rules include those governing: (1) ``a military or 
foreign affairs function of the United States;'' (2) ``a matter 
relating to agency management or personnel;'' or (3) a matter relating 
to ``public property, loans, grants, benefits, or contracts.'' 5 U.S.C. 
Sec. 553(a) (2016). The APA also exempts from the notice-and comment 
requirements rules that are issued for ``good cause,'' i.e., where an 
agency finds that ``notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. Sec. 553(b) (2016).
---------------------------------------------------------------------------
II. Judicial Review of Final Agency Action
    Section 702 of the APA subjects agency rulemaking to 
judicial review, providing a statutory mechanism for relief for 
``any person suffering legal wrong because of agency action, or 
adversely affected or aggrieved by agency action within the 
meaning of a relevant statute.''\17\ The APA requires a 
reviewing court to compel agency action when it is unlawfully 
withheld or unreasonably delayed and to set aside as unlawful 
agency action, findings, and conclusions when they are found to 
be:
---------------------------------------------------------------------------
    \17\5 U.S.C. Sec. 702 (2016).

        (A) arbitrary, capricious, an abuse of discretion, or 
---------------------------------------------------------------------------
        otherwise not in accordance with law;

        (B) contrary to constitutional right, power, privilege, 
        or immunity;

        (C) in excess if statutory jurisdiction, authority, or 
        limitations, or short of statutory right;

        (D) without observance of procedure required by law;

        (E) unsupported by substantial evidence in [a formal 
        rulemaking] or otherwise reviewed on the record of an 
        agency hearing provided by statute; or

        (F) unwarranted by the facts to the extent that the 
        facts are subject to trial de novo by the reviewing 
        court.\18\
---------------------------------------------------------------------------
    \18\5 U.S.C. Sec. 706(2) (2016).

    The two exceptions to this presumption of judicial review 
under the APA are when ``statutes preclude judicial review'' 
and when ``agency action is committed to agency discretion by 
law.''\19\ A court, however, always has the authority to review 
the constitutionality of agency action, including those actions 
that are otherwise unreviewable.\20\
---------------------------------------------------------------------------
    \19\5 U.S.C. Sec. 701 (2016).
    \20\See Webster v. Doe, 486 U.S. 592 (1988); Oestereich v. 
Selective Service System, 393 U.S. 233 (1968).
---------------------------------------------------------------------------
    Even where agencies agency action suffers a deficiency, the 
APA recognizes that no agency is perfect and leaves room for 
harmless error.\21\ Section 706 of the APA instructs courts to 
take into account ``the rule of prejudicial error,''\22\ which 
courts have occasionally utilized to excuse deviations in the 
rulemaking process.\23\ The Ninth Circuit has held that a 
failure to provide notice and comment is harmless only where 
the agency's mistake ``clearly had no bearing on the procedure 
used or the substance of decision reached.''\24\ Courts have 
been reluctant, however, to excuse deficiencies in notice and 
comment through the harmless-error doctrine,\25\ though the 
Supreme Court has held that courts must ordinarily defer to an 
agency's interpretation of its own ambiguous regulations.\26\ 
Although the APA does not contain a statute of limitations for 
civil actions, there is a 6-year limitation on civil actions 
brought against the United States.\27\
---------------------------------------------------------------------------
    \21\Kristin E. Hickman, Coloring Outside the Lines: Examining 
Treasury's (Lack of) Compliance with Administrative Procedure Act 
Rulemaking Requirements, 82 Notre Dame L. Rev. 1727, 1791 (2007).
    \22\5 U.S.C. Sec. 706 (2016).
    \23\Kristin E. Hickman, Coloring Outside the Lines: Examining 
Treasury's (Lack of) Compliance with Administrative Procedure Act 
Rulemaking Requirements, 82 Notre Dame L. Rev. 1727, 1791 (2007).
    \24\Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 
1992).
    \25\Kristin E. Hickman, Coloring Outside the Lines: Examining 
Treasury's (Lack of) Compliance with Administrative Procedure Act 
Rulemaking Requirements, 82 Notre Dame L. Rev. 1727, 1791 (2007).
    \26\See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) 
(holding that courts must defer to agency interpretation of an existing 
regulation unless plainly erroneous).
    \27\28 U.S.C. Sec. 2401 (2016)
---------------------------------------------------------------------------
    Under current law, both the court and the agency issuing a 
rule may stay the effective date of a final rule.\28\ While 
agencies have broad discretion in postponing the effective date 
of a rule, a court typically considers four factors in deciding 
whether to stay a rule:
---------------------------------------------------------------------------
    \28\Hearing on H.R. 3438, the ``Require Evaluation before 
Implementing Executive Wishlists Act of 2015;'' and, H.R.2631, the 
``Regulatory Predictability for Business Growth Act of 2015'' Before 
the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the 
H. Comm. on the Judiciary, 114th Cong. 5 (2015) (statement of William 
Funk, Lewis & Clark Distinguished Professor of Law, Lewis & Clark Law 
School).

        (1) whether the stay applicant has made a strong 
        showing that he is likely to succeed on the merits; (2) 
        whether the applicant will be irreparably injured 
        absent a stay; (3) whether issuance of the stay will 
        substantially injure the other parties interested in 
        the proceeding; and (4) where the public interest 
        lies.\29\
---------------------------------------------------------------------------
    \29\Nken v. Holder, 556 U.S. 418, 426 (2009).

    The authority of courts to grant stays of final agency 
action has ``historically been justified by the perceived need 
`to prevent irreparable injury to the parties or to the public' 
pending review.''\30\ Importantly, the Supreme Court has also 
clarified that judicial stays are not ``a matter of right, even 
if irreparable injury might otherwise result.'' Rather, courts 
exercise discretion on an case-by-case basis.\31\ Indeed, the 
Supreme Court has long-held that since traditional stay factors 
``contemplate individualized judgments in each case, the 
formula cannot be reduced to a set of rigid rules.''\32\
---------------------------------------------------------------------------
    \30\Id. at 432.
    \31\Id. at 433.
    \32\Id; Hilton v. Braunskill, 481 U.S. 770, 777 (1987).
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 3438

I. LH.R. 3438 Will Further Delay the Implementation of Time-Sensitive 
        Rules That Are Critical to Public Health and Safety
    There is broad agreement among administrative law experts 
that the regulatory system is already too ossified and burdened 
by regulatory delay.\33\ Both the American Bar Association 
(ABA) and the Administrative Conference of the United States 
(ACUS) have urged Congress to ``exercise restraint'' in 
imposing additional procedural and analytical requirements in 
agency rulemaking.\34\ In his testimony before the Senate 
Committee on Homeland Security and Government Affairs in 2015, 
Professor Sidney Shapiro noted that ``rules can take several 
years, if not decades to come to fruition, and scarce public 
resources are wasted,'' while ``the risks these rules are meant 
to address do not pause or evaporate into the ether; rather, 
they continue unabated, threatening the health and security of 
families and businesses across the country.''\35\ Professor 
Shapiro and others have also observed that, as of 2000, 
agencies may be subject to ``as many as 110 separate procedure 
requirements in the rulemaking process,'' noting that more 
procedural requirements have been added since that time.\36\
---------------------------------------------------------------------------
    \33\See, e.g., A Review of Regulatory Reform Proposals: Hearing 
Before the S. Comm. on Homeland Security & Gov't Affairs, 114th Cong. 4 
(2015) (statement of Sidney Shapiro, Vice President, Center for 
Progressive Reform, and Chair of Administrative Law, Wake Forest 
University School of Law), http://progressivereform.org/articles/
Shapiro--SenateRegReform--091615.pdf.
    \34\Id. citing Sec. of Admin. L. & Reg. Practice, Am. Bar Assoc., 
Policy: Regulatory Impact Analyses 3, http://www.americanbar.org/
groups/administrative--law/policy.html (last visited Oct. 29, 2015) 
(''The steady increase in the number and types of cost-benefit or 
rulemaking review requirements has occurred without any apparent 
consideration being given to their cumulative effect on the ability of 
agencies to carry out their statutory obligations.'').
    \35\A Review of Regulatory Reform Proposals: Hearing Before the S. 
Comm. on Homeland Security & Gov't Affairs, 114th Cong. (2015) 
(statement of Sidney Shapiro, Vice President, Center for Progressive 
Reform, and Chair of Administrative Law, Wake Forest University School 
of Law), http://progressivereform.org/articles/
Shapiro_SenateRegReform_091615.pdf.
    \36\Id. at 6; see Mark Seidenfeld, A Table of Requirements for 
Federal Administrative Rulemaking, 27 Fla. St. U. L. Rev. 533 (2000) 
(cataloguing 110 different requirements for agency rulemaking), http://
www.law.fsu.edu/journals/lawreview/downloads/272/Seid.pdf; E. Donald 
Elliott, Re-Inventing Rulemaking, 41 Duke L.J. 1490, 1494 (1992).
---------------------------------------------------------------------------
    Earlier this year, Public Citizen, a consumer interest non-
profit, released a seminal report on regulatory delays that 
found that increasing burdens imposed on the rulemaking system 
have resulted in years of delays in actually adopting a 
proposed rule.\37\ For example, the study found that while the 
Occupational Safety and Health Administration (OSHA) 
promulgated many lifesaving rules in less than a year in its 
early years, OSHA has required 12 years on average to adopt 
economically significant rules since 1996.\38\ Amit Narang, a 
Regulatory Policy Advocate for Public Citizen, explains:
---------------------------------------------------------------------------
    \37\Michael Tanglis, Unsafe Delays: An Empirical Analysis Shows 
That Federal Rulemakings To Protect the Public Are Taking Longer Than 
Ever, Public Citizen (June 28, 2016), http://www.citizen.org/documents/
Unsafe-Delays-Report.pdf.
    \38\Id. at 5.

        It is true that the regulatory system is broken, but 
        not because there is too much regulation. Rather the 
        system is broken because the current regulatory process 
        is too slow, too calcified, and too inflexible to 
        respond to public health and safety threats as they 
        emerge . . . the current process is a model of 
        inefficiency, with a dizzying array of duplicative and 
        redundant requirements interspersed throughout a 
        byzantine network that is a virtual maze for agencies 
        to navigate. This is the result of an accumulation of 
        analyses and procedures that Congress and the Executive 
        have imposed on agencies over the years leaving 
        agencies in a state of `paralysis by analysis.' Far 
        from the popular conception of `regulators run amok,' 
        the reality is that agency delays are rampant, 
        congressional and judicial deadlines are routinely 
        missed or pushed back, and ample evidence exists that 
        the situation is getting worse. . . . As is apparent, 
        delay permeates all aspects of the rulemaking process, 
        touching virtually all agencies and regulatory 
        sectors.\39\
---------------------------------------------------------------------------
    \39\A Review of Regulatory Reform Proposals: Hearing Before the S. 
Comm. on Homeland Security & Gov't Affairs, 114th Cong. 3 (2015) 
(statement of Sidney Shapiro, Vice President, Center for Progressive 
Reform, and Chair of Administrative Law, Wake Forest University School 
of Law), http://progressivereform.org/articles/
Shapiro_SenateRegReform_091615.pdf. Even the late-Justice Antonin 
Scalia has expressed concerns with imposing greater analytical 
requirements on agency rulemaking. In 1981, Justice Scalia, then a 
professor of law at the University of Chicago, wrote that ``the 
procedural advantages of rulemaking for the agency itself are headed 
for extinction,'' pointing to burdens imposed by the courts and 
Congress on flexible agency rulemaking. Antonin Scalia, Back to Basics: 
Making Law Without Making Rules, AEI Journal on Gov't & Society 25, 26 
(July/Aug. 1981), http://object.cato.org/sites/cato.org/files/serials/
files/regulation/1981/7/v5n4-5.pdf.

These delays have serious consequences on human lives. In April 
2016, the AFL-CIO reported that OSHA regulations have saved 
more than 532,000 lives since the passage of the Occupational 
Safety and Health Act of 1970, which ``promised workers in this 
country the right to a safe job.''\40\
---------------------------------------------------------------------------
    \40\AFL-CIO, Death on the Job: A National and State-by-State 
Profile of Worker Safety and Health in the United States 1 (Apr. 2016), 
http://www.aflcio.org/content/download/174867/4158803/1647_DOTJ2016.pdf
---------------------------------------------------------------------------
    Rather than streamline the regulatory system, H.R. 3438 
would worsen regulatory paralysis and delay in the rulemaking 
system by enabling regulated interests to block the 
implementation of critical rules simply by filing a lawsuit. 
Under current law, the agency that promulgates a high-impact 
rule may delay the rule's effective date on a discretionary 
basis when ``justice so requires.''\41\ Courts may also 
postpone a rule's effective date to prevent irreparable injury 
to a party.\42\ In practice, the Supreme Court has clarified 
that this requires a reviewing court to determine whether the 
party seeking to delay the rule will be irreparably harmed 
absent a stay and has made a strong showing that it will 
succeed on the merits of the case, or alternatively, whether 
granting a stay serves the public interest and avoids 
substantial injury to another party to the litigation.\43\ The 
Court has also noted that stays are an intrusion into the 
``ordinary processes of administration,'' while judicial review 
is ``not a matter of right, even if irreparable injury might 
otherwise result to the appellant.''\44\
---------------------------------------------------------------------------
    \41\5 U.S.C. Sec. 705 (2016).
    \42\Id.
    \43\Nken v. Holder, 556 U.S. 418, 426 (2009)
    \44\Id. at 427.
---------------------------------------------------------------------------
    As Lewis & Clark Law School Professor William Funk 
explains, the bill's ``absolute incentive'' to challenge and 
stay the implementation of high-impact rules would create years 
of costly delays.\45\ Georgetown University Law Center 
Professor William Buzbee concurs that the bill would create 
years of delays for ``virtually all'' high-impact rules blocked 
by ``years of litigation.''\46\
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    \45\Hearing on H.R. 3438, the ``Require Evaluation Before 
Implementing Executive Wishlists Act of 2015,'' and H.R. 2631, the 
``Regulatory Predictability for Business Growth Act of 2015'' Before 
the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the 
H. Comm. on the Judiciary, 114th Cong. 5 (statement of Professor 
William Funk, Lewis and Clark Law School) (on file with Democratic 
staff of the H. Comm. on the Judiciary).
    \46\Id.at 53 (statement of Professor William Buzbee, Professor of 
Law, Georgetown University Law Center).
---------------------------------------------------------------------------
    It is particularly problematic that H.R. 3438 fails to 
impose any requirement that a judicial review challenge to a 
rulemaking be meritorious. As a result, any entity that opposes 
a proposed regulation could commence a lawsuit against it, if 
only to delay its implementation while the court determines the 
sufficiency of the suit.\47\
---------------------------------------------------------------------------
    \47\Id.
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II. LH.R. 3438 Fails to Exempt from its Onerous Mandates Rules Needed 
        to Prevent Imminent Public Health and Safety Crises
    Although the unnecessary regulatory delays imposed by H.R. 
3438 would cost the U.S. economy billions of dollars,\48\ most 
importantly is the bill's threat to public health and safety. 
Agencies typically adopt high-impact rules in response to 
serious public health risks or to prevent imminent 
environmental disasters.\49\ As Georgetown University Law 
School Professor William Buzbee warns:
---------------------------------------------------------------------------
    \48\Id.
    \49\Id. at 54.

        A virtually guaranteed stay would mean that the 
        regulated harms might go unchecked for years, 
        potentially resulting in illnesses and deaths or 
        environmental destruction on a huge scale. That such 
        impacts would continue has been shown by innumerable 
        cost-benefit analyses by agencies and the Office of 
        Information and Regulatory Affairs (OIRA) within the 
        Office of Management and Budget (OMB). US laws regulate 
        many risks, and in our highly urbanized and 
        industrialized society with massive and often uniform 
        methods of production, risks and harms on a huge scale 
        are a prevalent risk. Cost-benefit analysis is 
        criticized by many, but one of its valuable lessons is 
        that prudent regulation should be preceded by 
        consideration of both the costs and the benefits of any 
        regulation. An automatically stayed regulation would 
        turn those regulatory benefits into years of ongoing 
        harms.\50\
---------------------------------------------------------------------------
    \50\Id.

    For example, few matters are more important to Americans 
than the safety of the water they drink as illustrated by the 
national outrage in response to the lead-contaminated public 
water system in Flint, Michigan. Nevertheless, H.R. 3438 lacks 
any exception for a time-sensitive rule dealing with 
contaminated public water systems. To highlight this 
shortcoming in the bill, Ranking Member John Conyers, Jr. (D-
MI), offered an amendment that would have exempted from the 
measure high-impact rules issued by the Environmental 
Protection Agency (EPA) intended to reduce lead and copper in 
drinking water.\51\ As Ranking Member Conyers explained, his 
amendment was necessary to prevent delays to critical high-
impact rules promulgated in response to public-health crises 
``such as the EPA's proposed revisions to lead to its lead and 
copper rule.''\52\ And, as Ranking Member Conyers observed, 
``the drinking water of potentially millions of Americans may 
be contaminated by lead.''\53\ Unfortunately, this amendment 
failed by a party-line vote of 15 to 11.\54\
---------------------------------------------------------------------------
    \51\Tr. of Markup of H.R. 3438, the ``Require Evaluation Before 
Implementing Executive Wishlists (Review) Act of 2015'' by the H. Comm. 
on the Judiciary, 114th Cong. 26 (Sept. 8, 2016).
    \52\Id. at 28.
    \53\Id. at 27.
    \54\Id. at 35.
---------------------------------------------------------------------------
    Representative Sheila Jackson Lee (D-TX) similarly offered 
an amendment to exempt from the bill high-impact rules intended 
to prevent the spread of infectious diseases such as the Zika 
virus.\55\ She stated in support of her amendment that H.R. 
3438 is ``an unnecessary and misguided bill that can 
dangerously hamper our Nation's efforts to respond to public 
health emergencies.''\56\ According to Anne Schuchat, Principal 
Deputy Director of the Center for Disease Control (CDC), 
increased cases of the Zika virus, which causes severe 
permanent birth defects in children that are untreatable, have 
been reported in the Commonwealth of Puerto Rico earlier this 
year.\57\ Since then, the CDC reports that the Zika virus 
disease has infected 2,964 people in the United States, and 
15,809 cases in U.S. territories.\58\ Speaking in support of 
the amendment, Resident Commissioner Pedro Pierluisi (D-PR), 
who represents 3.5 million U.S. citizens of Puerto Rico, stated 
that 98% of those infected with Zika were in Puerto Rico:
---------------------------------------------------------------------------
    \55\Id. at 37.
    \56\Id. at 38.
    \57\Anne Schuchat, Zika 101, Dep't of Health & Human Services (Jan. 
28, 2016), http://www.hhs.gov/blog/2016/01/28/zika-101.html.
    \58\Center for Disease Control and Prevention, Cases Counts in the 
US (Sept. 7, 2016), http://www.cdc.gov/zika/geo/united-states.html.

        On August 12, 2016, Health Secretary Sylvia Burwell 
        declared a public health emergency for Puerto Rico. The 
        declaration is an administrative tool that provides 
        flexibility for health officials in Puerto Rico to 
        address the outbreak on the island. Through the public 
        health emergency declaration, the government of Puerto 
        Rico can apply for funding to hire and train unemployed 
        workers to assist in vector control and outreach 
        efforts, and request temporary reassignment of local 
        public health department or agency personnel who are 
        funded through public health service act programs in 
        Puerto Rico, to assist in the Zika response. . . . You 
        all should remember that Puerto Rico is a U.S. 
        territory. We do not need passports to travel from 
        Puerto Rico to the States. There is migration all the 
        time, travel all the time. Women are exposed, 
        particularly. Unborn children and children are 
        particularly exposed, so this amendment is well-taken, 
        is well thought-out, and I urge my colleagues to make 
        this exception. Zika, again, merits an exception.\59\
---------------------------------------------------------------------------
    \59\Tr. of Markup of H.R. 3438, the ``Require Evaluation Before 
Implementing Executive Wishlists (REVIEW) Act of 2015'' by the H. Comm. 
on the Judiciary, 114th Cong. 45 (Sept. 8, 2016).

Representative Zoe Lofgren (D-CA) similarly observed that H.R. 
3438 would disrupt regulatory efforts to prevent the 
transmission of the Zika virus, which ``is a very devastating 
disease for families'' and ``carries at least $2 million in 
treatment costs.''\60\ Unfortunately, this amendment failed by 
a party-line vote of 14 to 14.\61\
---------------------------------------------------------------------------
    \60\Id. at 46.
    \61\Id. at 52.
---------------------------------------------------------------------------
    It should also be noted that high-impact rules often 
concern the administrative transfer of billions of dollars in 
Federal benefits to the public. During fiscal year 2014, for 
instance, executive branch agencies adopted 54 major rules,\62\ 
35 of which were transfer rules.\63\ According to the Office of 
Management and Budget (OMB), transfer rules merely ``implement 
Federal budgetary programs as required or authorized by 
Congress, such as rules associated with the Medicare Program 
and the Federal Pell Grant Program.''\64\ H.R. 3438, however, 
fails to exempt such rules and thus, as a result, any entity 
could challenge the transfer of these funds and thereby 
effectively postpone them to the detriment of millions of 
Americans.
---------------------------------------------------------------------------
    \62\The Congressional Review Act defines ``major rule'' as one 
having an annual effect on the economy of more than $100 million, as 
determined by OIRA, or a rule that adversely impacts competition, 
employment, or results in major costs to consumers, among other 
considerations. 5 U.S.C. Sec. 804(2) (2016).
    \63\Office of Mgmt & Budget, Office of Information and Regulatory 
Affairs 2015 Report to Congress on the Benefits and Costs of Federal 
Regulations and Agency Compliance with the Unfunded Mandates Reform Act 
2 (2015).
    \64\Id.
---------------------------------------------------------------------------
    To underscore this concern, Representative Suzan DelBene 
(D-WA) offered an amendment to exempt high-impact rules that 
would increase college affordability.\65\ She observed that 56% 
of college graduates in Washington, her home state, ``owe more 
than $23,000 upon graduation,''\66\ while student debt exceeds 
$1.3 trillion nationwide.\67\ Representative DelBene further 
explained that her amendment was needed to prevent the 
underlying bill from facilitating frivolous challenges to the 
transfers of Federal financial aid.\68\ Speaking in support of 
the amendment, Representative David Cicilline (D-RI) noted that 
``the Federal Pell Grant program, named for United States 
Senator Claiborne Pell, who represented my home State of Rhode 
Island in the United States Senate, is one more critical way to 
open doors and doorways of opportunity for more than 8 million 
low-income students who receive financial aid to pay for 
tuition, books, and room and board each year.''\69\ He also 
observed that H.R. 3438 would allow any party to delay the 
effective date of any high-impact rule,'' including those 
involving the transfer of Federal funds, such as the Pell Grant 
program.\70\ This amendment failed by a party-line vote of 15 
to 14.\71\
---------------------------------------------------------------------------
    \65\Tr. of Markup of H.R. 3438, the ``Require Evaluation Before 
Implementing Executive Wishlists (Review) Act of 2015'' by the H. Comm. 
on the Judiciary, 114th Cong. 53 (Sept. 8, 2016).
    \66\Id.
    \67\Id.
    \68\Id. at 55.
    \69\Id. at 56.
    \70\Id. at 57.
    \71\Id. at 64.
---------------------------------------------------------------------------
    Likewise, Representative Cicilline offered an amendment to 
exempt high-impact rules that lower health-care costs for 
persons over the age of 65.\72\ Describing H.R. 3438 as a 
``gift to the special interest, who wish to spend millions and 
waste years fighting regulations that could benefit the 
American people,'' he explained that the bill could allow a 
frivolous claim to automatically stay the transfer of funds 
through the Medicare Program.\73\ Representative Cicilline 
warned that allowing frivolous lawsuits to delay the benefits 
of the ``44.9 million seniors on Medicare in this country . . . 
would be a grave betrayal of the promise we have made to keep 
America's seniors healthy.''\74\ Notwithstanding these serious 
concerns, his amendment failed by a party-line vote of 17 to 
13.\75\
---------------------------------------------------------------------------
    \72\Id. at 65.
    \73\Id. at 67.
    \74\Id.
    \75\Id. at 93.
---------------------------------------------------------------------------
    The risk of delaying these highly beneficial rules could be 
devastating. As the Administration noted in its opposition to 
another regulatory reform bill designed to impede the 
implementation of rules on the basis of cost, these delays 
``would increase business uncertainty, undermine much-needed 
protections of the American public, and create unnecessary 
confusion. There is no justification for such an unprecedented 
requirement.''\76\
---------------------------------------------------------------------------
    \76\Exec. Office of the President, Statement of Administration 
Policy on H.R. 427, Regulations from the Executive in Need of Scrutiny 
Act of 2015 (July 27, 2015), https://www.whitehouse.gov/sites/default/
files/omb/legislative/sap/114/saphr427r_20150727.pdf.
---------------------------------------------------------------------------
III. LH.R. 3438 Is a Solution in Search of Problem That Ignores 
        Existing Procedural Safeguards
    H.R. 3438 is a dangerous solution to an undocumented 
problem. To begin with, it ignores the benefits of regulations, 
which typically exceed their cost by many multiples. For 
example, the 13 rules that had both quantified and monetized 
annual costs in fiscal year 2014 ranged between $2.5 billion 
and $3.7 billion, while the estimated benefits of these rules 
ranged between $8.1 billion and $18.9 billion.\77\
---------------------------------------------------------------------------
    \77\Office of Mgmt & Budget Office of Information and Regulatory 
Affairs 2015 Report to Congress on the Benefits, and Costs of Federal 
Regulations and Agency Compliance with the Unfunded Mandates Reform Act 
1-2 (2015).
---------------------------------------------------------------------------
    In addition, any entity under current law already may 
challenge a proposed rule in court and seek to have the rule's 
effective delayed, subject to the court's discretion.\78\ Such 
discretionary basis serves an important purpose. As Professor 
William Funk explains, ``[e]xisting law regarding stays weeds 
out frivolous claims and takes account of both the costs of the 
rule and the benefits of the rule that would be avoided by 
granting the stay.''\79\ In March 2016, for example, the 
Supreme Court issued a stay of the Clean Power Plan, a high-
impact rule to limit carbon pollution produced by existing 
power plants, delaying the rule's effective date until the 
lawsuits filed against the Environmental Protection Agency 
(EPA) have been resolved,\80\ even though the climate and 
health benefits of the rule, according to the EPA, are an 
estimated $55 billion to $93 billion per year in 2030, in 
addition to reducing thousands of premature deaths and hundreds 
of thousands of children's asthma cases, compared to a $7.3 
billion to $8.8 billion cost in 2030.\81\
---------------------------------------------------------------------------
    \78\5 U.S.C. Sec. 705 (2016).
    \79\Id.at 7
    \80\Adam Liptak & Coral Davenport, Chief Justice Rejects Effort to 
Block E.P.A. Limit on Power Plants, N.Y. Times, Mar. 3, 2016, http://
www.nytimes.com/2016/03/04/us/politics/supreme-court-chief-justice-
john-roberts-epa-coal.html.
    \81\Envt'l Protection Agency, Fact Sheet: Clean Power Plan Benefits 
(last visited on Sept. 9, 2016), https://www.epa.gov/cleanpowerplan/
fact-sheet-clean-power-plan-benefits.
---------------------------------------------------------------------------
    The Majority claims that H.R. 3438 is intended to maintain 
the status quo until the validity of a proposed rule is 
determined by a court and cites in support Supreme Court's 
decision in Michigan v. EPA,\82\ where it invalidated a rule 
adopted by the EPA to reduce power plants' emissions of 
hazardous air pollutants.\83\ Although the Majority claims this 
rule caused irreparable harm and cost billions of dollars to 
implement while only offering potential benefits in the 
millions of dollars,\84\ OIRA states that annual benefits of 
the rule range between $30 to $90 billion, very much dwarfing 
their annual costs of $9.6 billion.\85\ Moreover, as Professor 
Funk has noted, ``the grounds upon which the Supreme Court 
found the rule invalid appear to be easily remedied,'' while 
delaying this rule would cost the U.S. economy $20 to $80 
billion per year.\86\ Additionally, as Professor Buzbee has 
observed, courts already provide an adequate ``check on shoddy 
regulation'' through traditional motions for stays:
---------------------------------------------------------------------------
    \82\Tr. of Markup of H.R. 3438, the ``Require Evaluation Before 
Implementing Executive Wishlists (Review) Act of 2015'' by the H. Comm. 
on the Judiciary, 114th Cong. 10 (Sept. 8, 2016) (statement of 
Representative Tom Marino (R-PA)).
    \83\Michigan v. E.P.A., 135 S. Ct. 2699, 2712 (2015).
    \84\Tr. of Markup of H.R. 3438, the ``Require Evaluation Before 
Implementing Executive Wishlists (Review) Act of 2015'' by the H. Comm. 
on the Judiciary, 114th Cong. 10 (Sept. 8, 2016) (statement of 
Representative Tom Marino (R-PA)).
    \85\H.R. 3438, the ``Require Evaluation before Implementing 
Executive Wishlists Act of 2015''; and, H.R.2631, the ``Regulatory 
Predictability for Business Growth Act of 2015'': Hearing Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 114th Cong. 5-6 (2015) (statement of Professor 
William Funk, Lewis and Clark Law School) (on file with Democratic 
staff of the H. Comm. on the Judiciary).
    \86\Id.

        Courts will hear from a wide array of supporters and 
        challengers. This bill, in contrast, would by fiat 
        grant a stay, regardless of the stakes, the legal 
        merits, and risks and costs of the harms that would 
        otherwise be addressed. It is rare that even very high 
        cost rules are not accompanied by massive, usually far 
        higher societal and economic benefits of regulation. 
        With this bill's automatic stay, those harms would go 
        on for years, typically costing the country and its 
        citizens and possibly the environment billions of 
        dollars in harms that would usually far surpass 
        regulatory costs.\87\
---------------------------------------------------------------------------
    \87\Id. at 54 (statement of Professor William Buzbee Georgetown 
University Law Center).

    Consider the costs to industry presented by an extended 
period of uncertainty once a stay is imposed under H.R. 3438. 
Proposed rules with significant costs and benefits typically 
undergo thorough vetting through the notice-and-comment process 
that often takes several years and allows industry to adjust 
its future plans in anticipation of its timely finalization. In 
sharp contrast, under H.R. 3438, this regulatory certainty 
would suddenly be subject to an automatic stay of unpredictable 
length should some itinerant entity seek judicial review of 
such rule.
    Absent any evidence that courts have refused to grant stays 
in appropriate cases, it is clear that existing law adequately 
protection against the theoretical harms the bill is designed 
to fix.

                               CONCLUSION

    H.R. 3438 would severely undermine the efficiency of the 
rulemaking system, which is already burdened by needless delay. 
It accomplishes this goal by encouraging well-funded opponents 
of regulations to delay the implementation of critical rules by 
simply filing lawsuits challenging such rules and thereby 
triggering the bill's automatic stay preventing these rules 
from going into effect. The bill does not prevent or deter 
frivolous challenges. Nor does the bill recognize critical 
exceptions for emergent public health and safety rules or rules 
that simply authorize Federal funding transfers for important 
programs such as Medicare and Federal student loans. The bill 
replaces well-established legal doctrines designed to protect 
the public interest with statutorily sanctioned legal 
uncertainty that will delay and perhaps derail the 
implementation of critical regulations. As with nearly every 
other anti-regulatory measure that the Committee has considered 
this Congress, H.R. 3438 completely ignores the benefits of 
regulation and well-established law that shapes the rulemaking 
process. Rather than improving this process, the bill is simply 
a blatant effort to prevent the implementation of rules.
    For all of the foregoing reasons, we must respectfully 
oppose H.R. 3438 and we urge our colleagues to join us in 
opposition.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Mr. Jeffries.
                                   Mr. Cicilline.

                                  [all]