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114th Congress    }                                 {    Rept. 114-782
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                 {           Part 1

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



 
                   MIDNIGHT RULES RELIEF ACT OF 2016

                                _______
                                

 September 21, 2016.--Committed to the Committee of the Whole House on 
           the Senate 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. 5982]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 5982) to amend chapter 8 of title 5, United States 
Code, to provide for en bloc consideration in resolutions of 
disapproval for ``midnight rules'', and for other purposes, 
having considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     6
Committee Oversight Findings.....................................     9
New Budget Authority and Tax Expenditures........................     9
Congressional Budget Office Cost Estimate........................     9
Duplication of Federal Programs..................................    10
Disclosure of Directed Rule Makings..............................    10
Performance Goals and Objectives.................................    10
Advisory on Earmarks.............................................    10
Section-by-Section Analysis......................................    10
Committee Jurisdiction Letters...................................    12
Changes in Existing Law Made by the Bill, as Reported............    14
Dissenting Views.................................................    18

                          Purpose and Summary

    H.R. 5982 amends the Congressional Review Act (CRA) to 
allow joint resolutions disapproving en bloc regulations 
submitted to Congress for review within 60 legislative days of 
the end of a presidential term. The bill is designed to 
strengthen Congress' institutional authority over legislative 
rulemaking and solve effectively and efficiently the problem of 
``midnight rules''--new regulations issued as presidential 
Administrations draw to a close.

                Background and Need for the Legislation

                I. THE MIDNIGHT RULE PHENOMENON AND THE 
                      CURRENT MIDNIGHT RULE THREAT

    As the Obama administration draws to a close, there is 
renewed concern about midnight rules. This is justified. Any 
given Administration has an incentive to issue midnight rules, 
since these rules can entrench an outgoing Administration's 
final priorities before it leaves office.
    Midnight rules, however, present strong institutional 
concerns for the voters, Congress and incoming presidential 
Administrations. First and foremost, midnight rules can be 
issued to thwart or blunt an electoral mandate issued by the 
voters, as a defeated Administration or party leaves office. A 
wave of midnight regulations also can overwhelm Congress' 
ability to check regulatory overreach through CRA disapproval 
resolutions, oversight and other means. Under current law, for 
example, CRA resolutions can disapprove only one regulation at 
a time, rather than en bloc to meet a body of end-of-term 
regulations. Outgoing Administrations, moreover, may be less 
sensitive to Congress' oversight and appropriations authority, 
since they can issue regulations and leave office before 
Congress can respond comprehensively through these tools. Both 
Congress and incoming presidential Administrations can be 
hindered in the disapproval or rescission of midnight rules by 
the pressing need to devote congressional and executive 
resources to the passage and implementation of the electoral 
mandate given to a new Congress and a newly elected President.
    The hurry to complete regulatory activity towards the end 
of an Administration, moreover, often results in lower quality 
regulations. Agencies are rushed to complete their work and 
issue new rules in time, Office of Information and Regulatory 
Affairs (OIRA) review is diminished, and neither agency nor 
OIRA personnel have sufficiently strong incentives or latitude 
to conduct searching analyses of whether the rules should or 
should not be issued or modified, because outgoing 
Administrations have already made clear that they wish to 
proceed with the rules.\1\ The diminished scrutiny midnight 
rules receive helps to explain findings that midnight rules 
tend to have both lower net benefits and lower quality 
supporting analysis than do other regulations.\2\
---------------------------------------------------------------------------
    \1\See, e.g., Jerry Ellig, Evaluating the Quality and Use of 
Regulatory Impact Analysis: The Mercatus Center's Regulatory Report 
Card, 2008-2013 at 43-44, The Mercatus Center (2016) (available at 
http://mercatus.org/sites/default/files/Ellig-Reg-Report-Card-Eval-
v1.pdf); see also Patrick McLaughlin & Jerry Ellig, Does OIRA Review 
Improve the Quality of Regulatory Impact Analysis? Evidence from the 
Final Year of the Bush II Administration, 63 Admin L. Rev. (Special 
Edition) 179 (2011).
    \2\Id.
---------------------------------------------------------------------------
    The Obama administration has been particularly aggressive 
in its resort to new regulations, including new major 
regulations, to accomplish its policy goals. Not surprisingly, 
midnight rules already issued or remaining to be issued by the 
Obama administration are numerous and in many instances 
projected to impose high costs.\3\ But the problem of midnight 
rules is not unique to the Obama administration, nor is it 
unique to either political party. On the contrary, 
Administrations of both parties have for decades witnessed a 
spike in regulatory output during the midnight period.\4\
---------------------------------------------------------------------------
    \3\See, e.g., Sam Batkins, Administration's Last Regulatory Pieces 
to Cost $113 Billion, American Action Forum (June 1, 2016) (Last 
Regulatory Pieces) (available at https://www.
americanactionforum.org/insight/administrations-last-regulatory-pieces-
cost-113-billion).
    \4\See, e.g., Jerry Brito and Veronique De Rugy, For Whom the Bell 
Tolls: The Midnight Regulations Phenomenon, Mercatus Center, George 
Mason University (December 2008) (available at http://mercatus.org/
publication/whom-bell-tolls-midnight-regulation-phenomenon).
---------------------------------------------------------------------------
    Some administrations have instituted temporary measures to 
manage midnight rules better. During the George W. Bush 
administration, for example, White House Chief of Staff Joshua 
Bolten directed that ``[e]xcept in extraordinary 
circumstances,'' all regulations to be finalized by the 
Administration were to be proposed no later than June 1, 2008, 
and finally promulgated no later than November 1, 2008.\5\ The 
effort was not entirely successful, but it was earnest.
---------------------------------------------------------------------------
    \5\Memorandum from Joshua B. Bolten to Heads of Executive Agencies 
and Agencies and the Administrator of the Office of Information and 
Regulatory Affairs re: Issuance of Agency Regulations at the End of the 
Administration at 1 (May 9, 2008).
---------------------------------------------------------------------------
    The Obama administration also has exhorted agencies to take 
steps towards better midnight rule management. Specifically, on 
December 17, 2015, OIRA Administrator Shelanski issued a 
memorandum to agencies stating that they ``should strive to 
complete their highest priority rulemakings by the summer of 
2016 to avoid an end-of-year scramble that has the potential to 
lower the quality of regulations that OIRA receives for review 
and to tax the resources available for interagency review.''\6\ 
As in the Bush administration, however, there was little 
provision for penalties for agencies that fail to follow that 
timeline, and the Obama administration measure was more modest 
than the Bush administration's in any case.
---------------------------------------------------------------------------
    \6\Sam Batkins, Midnight Regulations: Examining Executive Branch 
Overreach, American Action Forum (February 10, 2016) (available at 
https://www.americanactionforum.org/testimony/midnight-regulations-
examining-executive-branch-overreach).
---------------------------------------------------------------------------
    In the face of tepid Executive Branch discipline and the 
lack of legislative reform, the potential for midnight rule 
abuse and misfeasance continues apace. According to the Obama 
administration's 2016 Spring Unified Agenda of Regulatory and 
Deregulatory Actions, released June 1, 2016, there are at least 
$5.3 billion in planned costs in just the period from November 
to December 2016.\7\ These include, for example, a final 
Renewable Fuels Standard and requirements for Systemically 
Important Financial Institutions.\8\ And, although 
Administrator Shelanski pledged to curtail the midnight rush of 
regulation, the trend through the first half of 2016 revealed 
the typical surge of end-of-term rules. Compared to similar 
periods during President Clinton and President Bush's tenure, 
the Obama administration has approved 38 percent more 
economically significant regulation than at any time since 
1996, when the Clinton administration passed through its first 
midnight rule period.
---------------------------------------------------------------------------
    \7\See Last Regulatory Pieces at 6.
    \8\Id.
---------------------------------------------------------------------------

       II. PREVIOUS LEGISLATIVE ATTEMPTS TO ADDRESS THE PROBLEM 
                           OF MIDNIGHT RULES

    A number of prior initiatives have attempted to address the 
midnight rule problem. During the 110th and 111th Congresses, 
for example, Rep. Nadler (D-NY) introduced the ``Midnight Rule 
Act,'' (H.R. 7926; H.R. 34). The Midnight Rule Act would have 
amended civil service law to provide that, subject to certain 
exceptions, midnight rules adopted within the final 90 days of 
an Administration not take effect until 90 days after the 
appointment by the new President of the issuing agency's new 
head. The legislation would then have authorized the new agency 
head to disapprove of a midnight rule within 90 days of his or 
her appointment.
    Another approach has been to propose a regulatory 
moratorium on rulemaking during the midnight rule period. 
During the 112th Congress, Rep. Ribble introduced H.R. 4607 
pursuing this approach. That bill would have instituted a 
moratorium on the proposal or issuance of significant rules 
after Election Day and through Inaugural Day of the following 
year when a presidential Administration was leaving office, 
subject to certain exceptions. This same proposal was 
reintroduced this term through H.R. 4612, sponsored by Rep. 
Walberg (R-MI).
    The Subcommittee on Commercial and Administrative Law held 
a hearing which included consideration of Rep. Nadler's 
Midnight Rule Act during the 111th Congress. The full 
Committee, however, did not report the bill. The Committee on 
Oversight and Government Reform reported Rep. Ribble's and Rep. 
Walberg's moratorium-based legislation during both the 112th 
and 114th Congresses.

  III. H.R. 5982'S SOLUTION--EN BLOC CRA DISAPPROVAL RESOLUTIONS FOR 
                             MIDNIGHT RULES

    H.R. 5982 offers a more effective, efficient and flexible 
solution. Rather than rely on regulatory moratoria or otherwise 
reconfigure rulemaking procedures, the Midnight Rules Relief 
Act simply authorizes a Congress that follows the end of a 
President's term to disapprove en bloc regulations submitted to 
it under the CRA during the last 60 legislative days of the 
preceding Congress.
    Since its enactment in 1996, the CRA has allowed a 
succeeding Congress to disapprove regulations submitted during 
its predecessor Congress' last 60 legislative days--one-by-one. 
By reforming this authority to allow en bloc disapprovals, H.R. 
5982 offers a powerful way for an incoming Congress, in one 
fell swoop, to dispose of midnight rules that should be 
rejected. This efficient and effective means of response, 
moreover, is highly flexible. There is no constraint on the 
number of rules that can be included in an en bloc resolution, 
other than that the rules must be drawn from those submitted 
within the last 60 legislative days of the prior Congress. If 
only a handful of midnight rules are objectionable, only they 
need be included. If larger numbers are objectionable, all of 
them can be included. The matter is left to the assessment of 
the succeeding Congress, in light of what the outgoing 
Administration submitted, what the voters communicated in the 
election, and what regulations can muster support for inclusion 
in a successful resolution.
    The CRA's current provision for rule-by-rule disapprovals 
provides only a minimal check on the desires of outgoing 
Administrations to promulgate problematic midnight rules. The 
Midnight Rules Relief Act would turn that table entirely. 
Administrations working under the ``Sword of Damocles'' of a 
succeeding Congress' disapproval with just one resolution of 
any or all midnight rules that defied the voters or were 
otherwise abusive or defective would receive a strong incentive 
to avoid the promulgation of such rules altogether, and instead 
focus their resources on the promulgation of rules with the 
political support and sound design and analysis needed to 
endure into succeeding Administrations.
    This institution of an effective check against problematic 
midnight rulemaking would, meanwhile, be no more intrusive than 
the current terms of the CRA. Agencies would not face moratoria 
or added steps in the rulemaking process during the midnight 
rule period. Nor would there be a need for any categorical or 
Presidentially-administered exceptions to the reform. 
Presidential Administrations would simply labor under the same 
possibility that two Congresses--the existing one and the 
succeeding one--would have an opportunity to disapprove a rule 
submitted during the last 60 legislative days of the existing 
Congress. All that would change would be the efficiency and 
effectiveness with which Congress could respond to problematic 
midnight rules and the strength of the incentive 
Administrations would have to avoid them.
    In short, the Midnight Rules Relief Act is a simple, 
straightforward, surgical response to the midnight rule 
phenomena that promises to produce better government, more 
responsive to the voters, and more faithful to the Framers' 
design, which lodged legislative authority in the Congress, not 
the Executive Branch.

                                Hearings

    On July 6, 2016, the Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law held an oversight hearing on the 
subject, ``Assessing the Obama Years: OIRA and Regulatory 
Impacts on Jobs, Wages and Economic Recovery.'' The hearing 
included oversight of the issue of midnight regulations and the 
Obama administration's midnight rulemaking period, including 
Administration measures related to it. Witnesses at the hearing 
included: the Hon. Howard Shelanski, Administrator, Office of 
Information and Regulatory Affairs, Office of Management and 
Budget; Douglas Holtz-Eakin, Ph.D., President, American Action 
Forum and former Director, Congressional Budget Office; Clyde 
Wayne Crews, Jr., Vice President for Policy, Competitive 
Enterprise Institute; William Beach, Ph.D., Vice President for 
Policy Research, Mercatus Center, George Mason University; and, 
Professor David Driessen, Syracuse University School of Law. 
H.R. 5982 responds to concerns addressed during the hearing.

                        Committee Consideration

    On September 14, 2016, the Committee met in open session 
and ordered the bill H.R. 5982 favorably reported, without 
amendment, by a rollcall vote of 15 to 5, 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. 5982.
    1. Amendment #1, offered by Mr. Conyers. The Amendment 
would except from the bill rules that are necessary because of 
an imminent threat to health or safety or other emergency. 
Defeated 4 to 13.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
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)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      4      13
------------------------------------------------------------------------


    2. Amendment #2, offered by Mr. Johnson. The Amendment 
would except from the bill rules proposed by an agency more 
than 3 years before the agency submitted the rule to Congress. 
Defeated 4 to 13.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................
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. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      4      13
------------------------------------------------------------------------


    3. Motion to report H.R. 5982 favorably to the House of 
Representatives. Approved 15 to 5.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................
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. Labrador (ID)..............................
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Ms. Walters (CA)...............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
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)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................              X
                                                ------------------------
    Total......................................     15       5
------------------------------------------------------------------------


                      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. 5982, 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 16, 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. 5982, the 
``Midnight Rules Relief 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. 5982--Midnight Rules Relief Act of 2016.

      As ordered reported by the House Committee on the Judiciary 
                         on September 14, 2016.




    H.R. 5982 would amend the Congressional Review Act (CRA) to 
allow en bloc disapproval of multiple regulations issued by a 
President in their final year in office. Under current law, the 
Congress can only use the CRA to disapprove one regulation at a 
time.
    Because the bill would affect how the Congress uses the CRA 
and thus could affect which regulations are allowed to go into 
effect, it could affect spending subject to appropriation, 
direct spending, and revenues. For example, regulations can 
affect the cost of entitlement programs as well as the 
collection of fees. Regulatory changes to those programs could 
either increase or decrease Federal spending or revenues. 
However, CBO has no basis for estimating how many regulations 
this legislation might affect or whether this new authority 
would be used.
    Because enacting the legislation could affect direct 
spending and revenues, pay-as-you-go procedures apply.
    CBO cannot determine whether enacting H.R. 5982 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. 5982 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. 5982 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. 5982 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. 
5982 strengthens the institutional authority, efficiency and 
effectiveness of Congress and diminishes undue burdens on 
liberty and the U.S. economy by allowing Congress to disapprove 
in a single, en bloc joint resolution any and all abusive or 
otherwise infirm midnight rules issued by an outgoing 
presidential Administration.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5982 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. 5982 as reported by 
the Committee.
Sec. 1. Short Title.
    Section 1 sets forth the short title of the bill as the 
``Midnight Rules Relief Act of 2016.''
Sec. 2: En Bloc Consideration of Resolutions of Disapproval Pertaining 
        to `Midnight Rules.'
    Section 2 amends secs. 801-802 of title 5 to allow 
disapproval resolutions pertaining to rules submitted to 
Congress within the last 60 legislative days of a session 
during the final year of a President's term to disapprove of 
any number of such rules.

                     Committee Jurisdiction Letters
                     
                     
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         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 (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 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).
    (4) In applying section 802 to rules described under 
paragraph (1), a joint resolution of disapproval may contain 
one or more such rules if the report under subsection (a)(1)(A) 
for each such rule was submitted during the final year of a 
President's term.
    (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 (except as 
otherwise provided in this subsection) 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). In the case of a joint 
resolution under section 801(d)(4), the matter after the 
resolving clause of such resolution shall be as follows: ``That 
Congress disapproves the following rules: the rule submitted by 
the __ relating to __; and the rule submitted by the __ 
relating to __. Such rules shall have no force or effect.'' 
(The blank spaces being appropriately filled in and additional 
clauses describing additional rules to be included as 
necessary)
    (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.

           *       *       *       *       *       *       *


                            Dissenting Views

                              INTRODUCTION

    H.R. 5982, the ``Midnight Rules Relief Act of 2016,'' is a 
sweeping measure that would enable Congress to disapprove en 
masse potentially every rule submitted under the Congressional 
Review Act (CRA)\1\ during the final 60 legislative days of a 
session in the last months of an outgoing presidential 
Administration. Were this bill currently in effect, every 
regulation submitted to Congress since May 16, 2016 through the 
end of this year--including critical, time-sensitive public 
health and safety regulations--could be invalidated by a 
subsequent Congress in a joint resolution without allowing 
Members to consider the merits of individual regulations.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. Sec. 801-08 (2016).
---------------------------------------------------------------------------
    As with the many other anti-regulatory measures that our 
Committee has considered this Congress, H.R. 5982 is dangerous 
solution to an undocumented problem. For example, the 
nonpartisan Administrative Conference of the United States 
(ACUS) found that ``a dispassionate look at midnight rules 
issued by past Administrations of both political parties 
reveals that most were under active consideration long before 
the November election,'' while many of these rules involved 
routine matters or ``finishing tasks that were initiated before 
the Presidential transition period or the result of deadlines 
outside the agency's control (such as year-end statutory or 
court-ordered deadlines).''\2\ The Coalition for Sensible 
Safeguards (CSS)--an alliance of more than 150 consumer, labor, 
research, faith, and other public interest groups--similarly 
concurs, noting that the bill ``is based on a fatally flawed 
premise--namely, that regulations which are proposed or 
finalized during the so-called `midnight' rulemaking period are 
rushed and inadequately 
vetted.''\3\ In fact, the House has already passed legislation 
to establish a moratorium on midnight rules.\4\
---------------------------------------------------------------------------
    \2\Administrative Conference of the United States, Administrative 
Conference Recommendation 2012-2: Midnight Rules 1-2 (June 14, 2012), 
https://www.acus.gov/sites/default/files/Final-Recommendation-2012-2-
Midnight-Rules.pdf.
    \3\Letter from the Coalition for Sensible Safeguards to Chairman 
Bob Goodlattee (R-VA) and Rep. John Conyers, Jr. (D-MI), Ranking 
Member, Committee on the Judiciary (Sept. 21, 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 accessed on Sept. 10, 2016), 
http://sensiblesafeguards.org/about-us/members.
    \4\H.R. 4361, tit. VI, 114th Cong. (2016). As passed by the House 
on July 7, 2016, this measure included an amended version of H.R. 4612, 
the ``Midnight Rule Relief Act of 2016,'' which prohibits certain 
Federal agencies from proposing or adopting any rule during the 
presidential transition period (the first Monday in November through 
January 20 of the following year in which a President is not serving a 
consecutive term).
---------------------------------------------------------------------------
    Perhaps the most pernicious impact of H.R. 5982 is that 
should any such rules be invalidated, the agencies that 
promulgated them would be prohibited under the CRA from ever 
issuing replacement regulations that are substantially the 
same, absent congressional action.\5\ The ramifications of this 
prohibition are immense, given the bill's potential to 
invalidate all regulations issued in the last six months of an 
outgoing presidential Administration.
---------------------------------------------------------------------------
    \5\5 U.S.C. Sec. 801(b)(2) (2016).
---------------------------------------------------------------------------
    For these reasons, and those described below, we 
respectfully dissent and urge our colleagues to reject this 
legislation when it comes to the House floor.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    H.R. 5982 amends section 801(d) of the CRA, which sets 
forth the process by which Congress may disapprove by joint 
resolution a rule submitted to it within the last 60 
legislative days of the House or Senate session by a Federal 
agency during the final year of an Administration. Under 
current law, such joint resolution may only pertain to an 
individual rule. As amended by the bill, section 801(d) would 
allow a joint resolution of disapproval for one or more rules 
without limit that are submitted to Congress within the 
applicable period.

                               BACKGROUND

                   I. OVERVIEW OF FEDERAL RULEMAKING

    Rulemaking is the ``agency process for formulating, 
amending or repealing a rule.''\6\ Federal regulations impact 
nearly every aspect of our lives and are ``one of the basic 
tools of government used to implement public policy.''\7\ The 
Administrative Procedure Act (APA) establishes the minimum 
rulemaking and formal adjudication requirements for all 
administrative agencies.\8\ The APA's baseline procedural 
requirements are designed to maintain a balance between agency 
flexibility and the requirements of due process. In addition to 
the APA, numerous other procedural and analytical requirements 
have been imposed on the rulemaking process by Congress and 
various presidents.\9\ These requirements focus ``predominately 
on agencies' development of new rules,'' according to the 
Government Accountability Office (GAO).\10\
---------------------------------------------------------------------------
    \6\5 U.S.C. Sec. 551(5) (2016).
    \7\Curtis W. Copeland, Cong. Research Serv., RL 32240, The Federal 
Rulemaking Process: An Overview 1 (2005).
    \8\5 U.S.C. Sec. Sec. 551 et seq. (2016).
    \9\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. 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).
    \10\U.S. Gov't Accountability Off., 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 
cumbersome.\11\ The process that most agencies use to 
promulgate a rule is informal rulemaking, commonly known as 
notice-and-comment rulemaking, which is set forth in section 
553 of the APA.\12\ Pursuant to this 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, which is typically accomplished through 
publication in the Federal Register.\13\ 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, 
from which the public should be able to understand the 
substance and justification of the rule.\14\ The final rule and 
the general statement must then be published in the Federal 
Register not less than 30 days before the rule's effective 
date.\15\
---------------------------------------------------------------------------
    \11\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.
    \12\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).
    \13\5 U.S.C. Sec. 553(b), (c) (2016).
    \14\Id.
    \15\5 U.S.C. Sec. 553(d) (2016).
---------------------------------------------------------------------------
    The Office of Information and Regulatory Affairs (OIRA) 
also plays a major role in the rulemaking process. That Office, 
which is housed in the Office of Management and Budget (OMB), 
which itself is within the Executive Office of the President, 
serves as the Federal Government's ``central authority for the 
review of Executive Branch regulations,'' among other 
responsibilities.\16\ OIRA is headed by an Administrator, who 
is nominated by the President and confirmed by the Senate. 
Howard Shelanski has served as the Administrator since June 
2013.\17\
---------------------------------------------------------------------------
    \16\Executive Office of the President, Office of Management and 
Budget, Office of Information and Regulatory Affairs, OIRA, available 
at https://www.whitehouse.gov/omb/oira (last visited Sept. 9, 2016).
    \17\Executive Office of the President, Office of Management and 
Budget, Office of Infor-
mation and Regulatory Affairs, Leadership, available at https://
www.whitehouse.gov/omb/
oira/leadership (last visited Sept. 11, 2016).
---------------------------------------------------------------------------
    Pursuant to Executive Order 12866, which President Bill 
Clinton issued in 1993,\18\ OIRA must review any ``significant 
regulatory action,'' defined as any regulatory action that is 
likely to result in a rule that may:
---------------------------------------------------------------------------
    \18\Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).

         Lhave an annual effect on the economy of $100 
        million or more or adversely affect in a material way 
        the economy, a sector of the economy, productivity, 
        competition, jobs, the environment, public health or 
        safety, or state, local, or tribal governments or 
---------------------------------------------------------------------------
        communities;

         Lcreate a serious inconsistency or otherwise 
        interfere with an action taken or planned by another 
        agency;

         Lmaterially alter the budgetary impact of 
        entitlements, grants, user fees, or loan programs or 
        the rights and obligations of recipients thereof; or

         Lraise novel legal or policy issues arising 
        out of legal mandates, the President's priorities, or 
        the principles set forth in this Executive order. \19\
---------------------------------------------------------------------------
    \19\Id.

In addition, section 2(b) of the Order specifically designated 
OIRA as ``the repository of expertise concerning regulatory 
issues.''\20\ In practice, OIRA typically reviews between 500 
to 700 rules annually.\21\
---------------------------------------------------------------------------
    \20\Id.
    \21\Executive Office of the President, Office of Management and 
Budget, Office of Information and Regulatory Affairs, Reginfo.gov--
Frequently Asked Questions, available at http://www.reginfo.gov/public/
jsp/Utilities/faq.jsp (last visited Sept. 9, 2016).
---------------------------------------------------------------------------

                        II. MIDNIGHT RULEMAKING

    The term ``midnight rule'' refers to a final administrative 
agency rule promulgated at the end of an outgoing presidential 
Administration's term of office. The general concern is that 
such rule could reflect an effort by an outgoing Administration 
to bind the incoming Administration. As one analysis explains:

        An incoming Administration cannot simply undo a final 
        midnight rule published in the Federal Register if the 
        rule is subject to the Administrative Procedure Act's 
        notice-and-comment requirements, as is the case with 
        most significant rules. The new Administration can 
        modify or revoke the rule only by initiating a new 
        rule-making procedure--that is, by publishing a new 
        proposed rule in the Federal Register, affording the 
        public an opportunity to submit comments, reviewing the 
        comments, and so forth.\22\
---------------------------------------------------------------------------
    \22\H. Comm. on the Judiciary Majority Staff, Final Report to 
Chairman John Conyers, Jr.: Reining in the Imperial Presidency--Lessons 
and Recommendations Relating to the Presidency of George W. Bush, at 
181 (Mar. 2009) (footnotes omitted).

    Reasons why an outgoing Administration may want to finalize 
rules during this ``midnight'' period include the 
``administration's desire to set long-term regulatory policy 
that will survive its departure'' or ``to await the conclusion 
of the November elections before issuing controversial rules 
that may cost its party votes.''\23\ Examples of such 
controversial midnight rules issued by the Clinton 
administration include energy efficiency standards for washing 
machines and workplace ergonomics standards. During the waning 
days of the George W. Bush administration, controversial 
regulations were issued allowing states to determine whether 
concealed firearms may be carried in national parks as well as 
rules giving agencies greater authority to determine whether 
their actions comport with the Endangered Species Act.\24\
---------------------------------------------------------------------------
    \23\Id. at 180 (footnotes omitted).
    \24\Maeve P. Carey, Midnight Rulemaking, Cong. Research Serv. Rep. 
to Cong., R42612, at 1 (July 18, 2012).
---------------------------------------------------------------------------
    Potential concerns about midnight rules include whether the 
analytical review process for such rulemakings may have been 
rushed, thereby depriving the public or promulgating agency 
sufficient time to vet the rules with the requisite care.\25\ 
For instance, the George W. Bush administration was criticized 
for allowing insufficient time for public comment, ignoring 
significant public comments, and otherwise departing from 
accepted rulemaking practices.\26\ In addition, some thought 
that the Bush administration used the midnight regulatory 
period to promulgate numerous regulations that contravened 
statutory mandates and the public interest.\27\ This occurred 
even though the White House Chief of Staff in May 2008 directed 
all executive departments and agencies to propose any rules to 
be ``finalized'' during the Bush administration ``no later than 
June 1, 2008,'' and to issue ``any final regulations . . . no 
later than November 1, 2008,'' ``except in extraordinary 
circumstances.''\28\ The stated purpose of the directive was to 
follow a ``principled approach to regulation as we spring to 
the finish, and resist the historical tendency of 
Administrations to increase regulatory activity in their final 
months.''\29\ The Bush administration failed to honor this 
directive. Several significant proposed rules--affecting, among 
other things, the environment,\30\ civil rights,\31\ and 
workplace safety\32\--were proposed after June 1, 2008. More 
importantly, the Bush administration issued numerous final 
rules on these and other subjects after November 1, 2008. Many 
of these rules were controversial and were opposed by a 
majority of the members of Congress and the Obama 
administration.\33\
---------------------------------------------------------------------------
    \25\Maeve P. Carey, Cong. Research Serv., Midnight Rules: 
Congressional Oversight and Options, Cong. Research Serv. Insight No. 
10516, at 1 (2016).
    \26\See, e.g., Letter from Richard L. Revesz, Dean, New York 
University School of Law & Michael A. Livermore, Executive Director, 
Institute for the Study of Regulation, to Jim Nussle, Director, Office 
of Management and Budget (Sept. 5, 2008) (on file with Democratic staff 
of the H. Comm. on the Judiciary) (charging Bush administration with 
``engaging in extremely irregular deviations from the traditional 
rulemaking process . . . including failure to hold public hearings, 
failure to accept electronic public comments, and shortened public 
comment periods.'').
    \27\See, e.g., Reece Rushing, et al., After Midnight: The Bush 
Legacy of Deregulation and What Obama Can Do, Center for American 
Progress 3-11 (Jan. 22, 2009), https://www.americanprogress.org/issues/
general/report/2009/01/22/5480/after-midnight.
    \28\Memorandum from Joshua B. Bolten, White House Chief of Staff, 
to Heads of Executive Departments and Agencies (May 9, 2008), http://
www.nodpa.com/Bolton-memo-regs-5-9-08.pdf.
    \29\See Charlie Savage & Robert Pear, Administration Moves to Avert 
a Late Rules Rush, N.Y. Times, May 31, 2008, at A-1.
    \30\Interagency Cooperation Under the Endangered Species Act, 73 
Fed. Reg. 47868 (proposed Aug. 15, 2008).
    \31\Ensuring that Department of Health and Human Services Funds Do 
Not Support Coercive or Discriminatory Policies or Practices in 
Violation of Federal Law, 73 Fed. Reg. 50274 (Aug. 26, 2008).
    \32\Requirements for DOL Agencies' Assessment of Occupational 
Health Risks, 73 Fed. Reg. 50908 (proposed Aug. 29, 2008).
    \33\See, e.g., Reece Rushing, et al., After Midnight: The Bush 
Legacy of Deregulation and What Obama Can Do, Center for American 
Progress 3-11 (Jan. 22, 2009), https://www.americanprogress.org/issues/
general/report/2009/01/22/5480/after-midnight.
---------------------------------------------------------------------------
    On December 17, 2015, OIRA Administrator Shelanski issued a 
memorandum to executive branch agencies recommending that they 
finalize rules for OIRA review by the summer of 2016 ``to avoid 
an end-of-year scramble that has the potential to lower the 
quality of regulations that OIRA receives for review and to tax 
the resources available for interagency review.''\34\ This 
memorandum can be viewed as part of the Obama administration's 
effort to ``curb the use of midnight regulations.''\35\ In 
addition, Administrator Shelanski is coordinating with agencies 
to ensure that ``their most important policy priorities move to 
the front of the line, so that we can really work those though 
a rigorous process that serves the American public, that serves 
the parties that are being regulated [and] that makes sure that 
we at OIRA do our job.''\36\ He also stated that OIRA has moved 
the ``most the most important regulatory priorities up in the 
line so that they don't get caught short at the end of the 
administration.''\37\
---------------------------------------------------------------------------
    \34\Memorandum from the Honorable Howard A. Shelanski, 
Administrator, Office of Information and Regulatory Affairs (OIRA), to 
Deputy Secretaries of Executive Branch Agencies (Dec. 17, 2015), 
https://www.whitehouse.gov/sites/default/files/omb/assets/
agencyinformation_circulars_memoranda_2015_pdf/
regulatory_review_at_the_end_of_the_administration.pdf.
    \35\Stuart Shapiro, Giving 'Midnight Regulations' an Earlier 
Bedtime, The Hill (Feb. 
11, 2016), http://thehill.com/blogs/pundits-blog/the-administration/
269062-giving-midnight-
regulations-an-earlier-bedtime.
    \36\Cheryl Bolen, To Avoid Midnight Regulations in 2016, Obama 
Tells Agencies to Set Priorities Now, Bloomberg (Feb. 12, 2015), http:/
/www.bna.com/avoid-midnight-regulations-n17179923030.
    \37\Id.
---------------------------------------------------------------------------

                     III. CONGRESSIONAL REVIEW ACT

    In addition to its ability to check agency behavior through 
more limited delegations of authority--such as the 
appropriations process and oversight activity--Congress may 
also invalidate agency rules under the Congressional Review Act 
(CRA).\38\ Enacted with bipartisan support in 1996 as part of 
the Republican Contract with America,\39\ the CRA requires an 
agency promulgating a rule\40\ to submit to the House, the 
Senate, and the GAO: (1) a copy of the rule; (2) a concise 
general statement describing the rule (including whether it is 
a major rule, i.e., one that will likely have an annual effect 
on the economy of $100 million or more, increases costs or 
prices for consumers, industries or state and local 
governments, or have significant adverse effects on the 
economy);\41\ and (3) the proposed effective date of the rule. 
If the rule is a major rule, the agency must also submit to GAO 
and each House of Congress: (1) a complete copy of any cost-
benefit analysis; (2) a description of the agency's actions 
pursuant to the requirements of the Regulatory Flexibility 
Act\42\ and the Unfunded Mandates Reform Act of 1995;\43\ and 
(3) any other relevant information required under any other act 
or executive order.\44\
---------------------------------------------------------------------------
    \38\5 U.S.C. Sec. Sec. 801-08 (2016).
    \39\Contract with America Advancement Act, Pub. L. No. 104-121, 
subtitle E, 110 Stat. 857-74 (1996) (codified as 5 U.S.C. 
Sec. Sec. 801-808 (2016)).
    \40\As used in the CRA, the term ``rule'' means ``the whole or part 
of an agency statement of general . . . applicability and future effect 
designed to implement, interpret, or prescribe law or policy.'' 5 
U.S.C. Sec. 551 (2016); see also 5 U.S.C. Sec. 804(3) (2016) (defining 
``rule'' by reference to Sec. 551, with certain exceptions).
    \41\5 U.S.C. Sec. 804(2) (2016).
    \42\Pub. L. No. 96-353 (1980).
    \43\Pub. L. No. 104-4 (1995).
    \44\5 U.S.C. Sec. 801(a)(1)(B) (2016).
---------------------------------------------------------------------------
    The CRA authorizes Congress to disapprove an agency rule to 
which it objects by enacting a joint resolution of 
disapproval.\45\ The joint resolution must be introduced within 
at least 60 days of the rule's submission to Congress.\46\ For 
such resolution to take effect, it must pass both Houses of 
Congress and be signed by the President thereby satisfying the 
Constitution's Bicameralism and Presentment Clauses' 
requirements.\47\ Upon enactment, the disapproved rule is 
deemed not to have been in effect at any time.\48\ 
Additionally, the CRA prohibits an agency from reissuing a rule 
that is substantially the same as a disapproved rule.\49\ The 
CRA prescribes special expedited procedures for Senate 
consideration of a joint resolution of disapproval, though it 
does not provide for similar procedures in the House of 
Representatives.\50\
---------------------------------------------------------------------------
    \45\See 5 U.S.C. Sec. 802 (2016) (outlining congressional 
disapproval procedure).
    \46\5 U.S.C. Sec. 802(a) (2016).
    \47\U.S. Const. Art. I, Sec. 7, cl. 2, 3.
    \48\5 U.S.C. Sec. 801(f) (2016).
    \49\5 U.S.C. Sec. 801(b)(2) (2016).
    \50\5 U.S.C. Sec. 802(c) (2016).
---------------------------------------------------------------------------
    Barring congressional action, a major rule goes into effect 
on the latest of three possible dates: (1) 60 calendar days 
after it has been submitted to Congress or has been published 
in the Federal Register, (2) 30 session days after a 
presidential veto of a joint resolution of disapproval or 
earlier if either House of Congress votes and fails to override 
such veto, or (3) the date on which the rule would otherwise 
have gone into effect absent the CRA review requirement.\51\ A 
nonmajor rule goes into effect as otherwise provided for by 
law.\52\ In either case, Congress still has 60 legislative or 
session days to disapprove the rule.
---------------------------------------------------------------------------
    \51\5 U.S.C. Sec. 801(a)(3) (2016).
    \52\5 U.S.C. Sec. 801(a)(4) (2016).
---------------------------------------------------------------------------
    Section 801(d) of the CRA provides a separate process for 
rules submitted to Congress less than 60 days before the end of 
the legislative session in the Senate or House.\53\ While rules 
submitted before this time period are not subject to additional 
periods of congressional review, rules submitted on or after 
the 60th day before a session adjourns sine die in either 
chamber are subject to an additional period of congressional 
review.
---------------------------------------------------------------------------
    \53\5 U.S.C. Sec. 801(d)(1) (2016).
---------------------------------------------------------------------------
    The Congressional Research Service (CRS) estimates that 
based on the projected second-session schedules of the House 
and Senate as issued by each chamber's majority leader,\54\ 
final rules submitted to Congress after May 16, 2016 ``will be 
subject to renewed review periods in 2017 by a new President 
and a new Congress.''\55\ The CRA provides that the renewed 60-
day period begins on the 15th legislative day in the House and 
the 15th session day in the Senate in the next Congress.\56\
---------------------------------------------------------------------------
    \54\Christopher M. Davis & Richard S. Beth., Cong. Research Serv., 
Agency Final Rules Submitted After May 16, 2016, May Be Subject to 
Disapproval in 2017 Under the Congressional Review Act, IN10437 (2016) 
[hereinafter CRS CRA Report], available at http://www.crs.gov/Reports/
IN10437?source=search&guid;=429f3648ce2c40f09f836a9cb1f29b29&
index=9#.
    \55\Id. Of course, if the House or Senate deviates from their 
stated adjournment date, then the estimated date of May 16, 2016 would 
change.
    \56\5 U.S.C. Sec. Sec. 801(d)(2)(A), 802 (2016).
---------------------------------------------------------------------------

                                CONCERNS

           I. H.R. 5982 JEOPARDIZES PUBLIC HEALTH AND SAFETY

    As with other anti-regulatory bills considered by our 
Committee this Congress, H.R. 5982 completely ignores the 
benefits of regulations, which often exceed their costs by many 
multiples, and is premised on the misguided belief that 
regulations undermine employment or economic growth. One of the 
most problematic aspects of H.R. 5982, however, is that it 
would permit Congress to invalidate rules en masse without 
proper consideration of an individual rule's benefits and no 
matter how important or time-sensitive these rules may be.
    Agencies often promulgate emergency rules or orders in 
response to immediate threats to public health and safety. 
Although the CRA specifically permits agencies to promulgate a 
rule notwithstanding the APA's notice-and-comment requirements 
if the agency has good cause, such exception is only available 
if the agency has not already undertaken regulatory action. It 
is not difficult to imagine a scenario where, due to exigent 
circumstances, an agency may need to quickly adopt and 
implement a rule that has already received public comment, but 
is still in the rulemaking process.
    To illustrate this major shortcoming of H.R. 5982, Ranking 
Member John Conyers, Jr. (D-MI) offered an amendment that would 
have exempted from the bill rules issued in response to an 
imminent threat to health, safety, or other emergencies. For 
example, long before the Flint Water crisis, the Environmental 
Protection Agency initiated the process of updating its Lead 
and Copper Rule, which was originally promulgated in 1991 after 
years of analysis.\57\
---------------------------------------------------------------------------
    \57\40 C.F.R. pt. 141, subpt. 1 (2016).
---------------------------------------------------------------------------
    The recent lead-contaminated water crisis that occurred in 
Flint, Michigan is just the latest in a long history of cases 
of contaminated municipal water supplies. In fact, the drinking 
water of potentially millions of Americans may be contaminated 
by lead, which underscores the importance of allowing agencies 
to swiftly adopt a rule in response to lead in drinking water 
without being encumbered by this bill's pernicious delays. 
Urgent, life-saving rulemakings--such as the EPA's proposed 
revisions to its Lead and Copper Rule--must not be impeded or 
delayed by measures such as H.R. 5982. Unfortunately, this 
commonsense amendment was not adopted based on a party-line 
vote of 4 to 13.\58\
---------------------------------------------------------------------------
    \58\Unofficial Tr. of the Markup of H.R. 5982, the ``Midnight Rules 
Relief Act of 2016,'' by the H. Comm. on the Judiciary, 114th Cong. 45 
(Sept. 14, 2016).
---------------------------------------------------------------------------

      II. H.R. 5982 EMPOWERS SPECIAL INTERESTS TO BLOCK CRITICAL, 
                        LIFE-SAVING REGULATIONS

    Prior to submitting rules to Congress, agencies typically 
take several years to ensure that they are carefully vetted. 
Indeed, much of modern rulemaking involves a ``very detailed 
analysis of legal, factual, and policy issues, many of them 
highly technical. This work is better suited to the subject 
matter specialists in the respective agencies,'' as 
administrative law expert Professor Ron Levin of Washington 
University School of Law has previously testified.\59\
---------------------------------------------------------------------------
    \59\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) (statement of Ronald M. Levin, William R. Orthwein 
Distinguished Professor of Law, Washington University School of Law).
---------------------------------------------------------------------------
    Faced with this complexity, H.R. 5982 would result in 
Congress predictably relying on industry input when presented 
with an up-or-down vote on a long list of complicated, 
technical rules. The prospect of industry influence is 
particularly concerning in light of the potentially unlimited 
regulatory challenges that the bill would facilitate. As David 
Goldston of the Natural Resources Defense Council explained 
with respect to another anti-regulatory measure, special 
interests would ``descend on Congress with even greater fervor 
than is currently the case to pressure Members to take their 
side on individual regulations.''\60\
---------------------------------------------------------------------------
    \60\Regulations from the Executive in Need of Scrutiny Act of 2011: 
Hearing on H.R. 10 Before the Subcomm. on Courts, Commercial and Admin. 
L. of the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of 
David Goldston, Director of Government Affairs, Natural Resources 
Defense Council).
---------------------------------------------------------------------------

   III. H.R. 5982 IS BASED ON THE FALSE PREMISE THAT RULES FINALIZED 
   DURING THE LAST YEAR OF A PRESIDENT'S TERM ARE SOMEHOW RUSHED OR 
                           IMPROPERLY VETTED

    This legislation seeks to address a non-existent problem. 
Indeed, so-called midnight rules may actually take longer to 
adopt than other rules. For instance, Public Citizen, in its 
July 2016 report, found that rules finalized during a 
transition period typically were proposed several years prior 
to their adoption, short-circuiting the Majority's stated 
premise in support of the bill.\61\ Focusing on economically 
significant rules, i.e., rules that have an effect on the 
economy exceeding $100 million, Public Citizen found that the 
average rulemaking duration for rules adopted in transition 
periods was 3.6 years.\62\ In comparison, rules adopted in non-
transition periods took 2.8 years to complete, according to the 
study. In effect, midnight rules actually take longer to adopt 
than other rules. As the Coalition for Sensible Safeguards--an 
alliance of more than 150 consumer, labor, research, faith, and 
other public interest groups--observed in opposition to 
substantively similar legislation introduced this Congress:
---------------------------------------------------------------------------
    \61\Michael Tanglis, Shining a Light on the ``Midnight Rule'' 
Boogeyman, Public Citizen (July 18, 2016), http://citizen.org/
documents/Midnight-Regs-Myth.pdf.
    \62\Id. at 4.

        This legislation is based on a fundamentally false 
        premise: that regulations proposed or finalized during 
        the so-called ``midnight'' rulemaking period--the 
        period following the election and before the 
        inauguration of the new president--are rushed and 
        inadequately vetted. In fact, the very opposite is 
        true. Many of these proposed public health and safety 
        protections have been working their way through the 
        regulatory process for years or decades, and some of 
        them predate the current Administration. Furthermore, 
        many of these regulations were mandated by Congress and 
        have missed rulemaking deadlines set by Congress.\63\
---------------------------------------------------------------------------
    \63\Coalition for Sensible Safeguards, The Midnight Rule Relief 
Act: CSS Opposes the Bill and Urges Members of Congress to Vote against 
It (last accessed on Sept. 10, 2016), http://sensiblesafeguards.org/
issues/midnight-rule-relief-act.

    While there is empirical evidence supporting the notion 
that outgoing Administrations, at least since the Carter 
administration, increase the rate at which they issue 
regulations during the final months of their existence, the 
nonpartisan, congressionally-established Administrative 
Conference of the United States (ACUS) studied this phenomenon 
and found that many of these rules involve ``relatively routine 
matters not implicating new policy initiatives by incumbent 
administrations,'' and that the ``majority of the rules appear 
to be the result of finishing tasks that were initiated before 
the Presidential transition period or the result of deadlines 
outside the agency's control (such as year-end statutory or 
court-ordered deadlines).''\64\ In fact, incoming 
Administrations generally do not repeal last-minute rulemakings 
made by their predecessor Administrations:
---------------------------------------------------------------------------
    \64\Administrative Conference of the United States, Administrative 
Conference Recommendation 2012-2: Midnight Rules 1-2 (June 14, 2012), 
https://www.acus.gov/sites/default/files/Final-Recommendation-2012-2-
Midnight-Rules.pdf.

        Most final midnight rules survive changes in 
        Administration. One study found that only nine percent 
        of the first Bush administration's midnight rules were 
        repealed by the Clinton administration, and nearly half 
        went unmodified. The Clinton administration's midnight 
        rules faired even better. Only three percent were 
        repealed, and more than three-quarters went unmodified. 
        Political pressures, legal constraint, and time and 
        resource limitations have been cited as the main 
        reasons why midnight rules so often survive changes in 
        Administration.\65\
---------------------------------------------------------------------------
    \65\H. Comm. on the Judiciary Majority Staff, Final Report to 
Chairman John Conyers, Jr.: Reining in the Imperial Presidency--Lessons 
and Recommendations Relating to the Presidency of George W. Bush, at 
181 (Mar. 2009) (footnotes omitted).

Similarly, the Center for Progressive Reform observes that 
concerns surrounding midnight rulemaking are overstated and 
that they are motivated by ``ensuring that certain 
fundamentally antiregulatory components of the rulemaking 
process--namely, cost-benefit analysis and OIRA review--are 
afforded every opportunity to achieve the antiregulatory ends 
that some would desire,'' not improving the quality of 
rules\66\
---------------------------------------------------------------------------
    \66\As CPR explained:

      While ``midnight regulations'' might make for a good 
      political talking point, there simply is no reason to 
      believe that a rule released at the end of an 
      Administration is worse than those that are released at any 
      other point. In fact, the Administration could have been 
      working on such rules for as long as seven years, which, 
      according to the logic of the midnight regulation 
      alarmists, would suggest that the quality of the rules is 
      even better. After all, if the underlying assumption is 
      that longer rulemakings make for better rules, then many of 
      these last rules could very well be the best of the 
      Administration. . . . But all of this talk about alleged 
      concerns regarding rule quality is actually beside the 
      point. Just take a close look at the arguments that the 
      midnight regulation alarmists raise. You'll see that their 
      real concern is about ensuring that individual rules are 
      subjected to extensive cost-benefit analysis (purportedly 
      to maximize the rule's net benefits) and lengthy review by 
      the White House Office of Information and Regulatory 
      Affairs (OIRA). Anti-regulatory advocates assume--and they 
      hope others will, too--that cost-benefit analysis and OIRA 
      review leads to ``better'' rules, but that is not the case 
      in reality. Instead, these institutions lead inexorably to 
      less protective rules and needless delay. While such 
      results may match the policy preferences of corporate 
      interests and their ideological allies, they are highly 
      inconsistent with public's interest in seeing that agencies 
      carry out their statutory mission in a timely and effective 
---------------------------------------------------------------------------
      manner.

James Goodwin, Midnight Regulations, Shmidnight Shmegulations, Center 
for Progressive Reform (Feb. 12, 2016), http://sensiblesafeguards.org/
midnight-regulations-shmidnight-shmegulations.
    Lastly, Congress has already passed legislation to 
establish a moratorium on midnight rules.\67\ In its Statement 
of Administrative Policy threatening to veto that bill, the 
Obama administration noted that it ``would infringe on the 
powers of the President to faithfully execute the laws in the 
final months of the term,'' while preventing the implementation 
of laws passed by Congress through beneficial regulations.\68\ 
Moreover, the Obama administration has stated that it will 
``avoid an end-of-year scramble'' for interagency review,\69\ 
which has been viewed as part of the Administration's effort to 
``curb the use of midnight regulations.''\70\
---------------------------------------------------------------------------
    \67\H.R. 4361, tit. VI, 114th Cong. (2016). As passed by the House 
on July 7, 2016, this measure included an amended version of H.R. 4612, 
the ``Midnight Rule Relief Act of 2016,'' which prohibits certain 
Federal agencies from proposing or adopting any rule during the 
presidential transition period (the first Monday in November through 
January 20 of the following year in which a President is not serving a 
consecutive term).
    \68\Office of Mgmt. & Budget, Exec. Office of the President, 
Statement of Administration Policy: H.R. 4361, Federal Information 
Systems Safeguard Act of 2016 2 (2016), https://www.whitehouse.gov/
sites/default/files/omb/legislative/sap/114/saphr4361r_20160705.pdf.
    \69\Memorandum from the Honorable Howard A. Shelanski, 
Administrator, Office of Information and Regulatory Affairs (OIRA), to 
Deputy Secretaries of Executive Branch Agencies (Dec. 17, 2015), 
https://www.whitehouse.gov/sites/default/files/omb/assets/
agencyinformation_
circulars_memoranda_2015_pdf/
regulatory_review_at_the_end_of_the_administration.pdf.
    \70\Stuart Shapiro, Giving 'Midnight Regulations' an Earlier 
Bedtime, The Hill (Feb. 11, 2016), http://thehill.com/blogs/pundits-
blog/the-administration/269062-giving-midnight-
regulations-an-earlier-bedtime.
---------------------------------------------------------------------------

                               CONCLUSION

    H.R. 5982 is not a modest proposal. The bill dramatically 
expands the ability of Congress to summarily disapprove rules 
submitted to it during the last six months or so of an outgoing 
Administration\71\ by authorizing Congress to disapprove every 
rule submitted during this period, regardless of how many years 
it took to formulate these rules or how critical they may be 
needed to address imminent public health and safety concerns. 
The en bloc disapproval process authorized by the bill would 
facilitate wholesale eradication of a prior Administration's 
regulatory agenda, without allowing Members to consider the 
merits of individual regulations. Also of particular concern is 
the fact that should any such rules be invalidated, the 
agencies that promulgated them would be prohibited under the 
CRA from ever issuing replacement rules that were substantially 
the same absent congressional action.\72\
---------------------------------------------------------------------------
    \71\As previously noted, CRS estimates that the ``midnight rule'' 
period began on May 16, 2016. CRS CRA Report supra.
    \72\5 U.S.C. Sec. 801(b)(2) (2016).
---------------------------------------------------------------------------
    In addition, H.R. 5982, like many of the anti-regulatory 
measures offered by the Majority, does not solve an actual 
problem. While there may be bipartisan concern that so-called 
``midnight rules'' issued during the final days of an 
Administration warrant additional congressional scrutiny, 
practice has shown that such concern may be largely 
unwarranted. As previously noted, ACUS found that although 
there may be an uptick in the number of agency rules finalized 
in the waning days of an outgoing Administration, many of these 
rules involve ``relatively routine matters not implicating new 
policy initiatives by incumbent administrations,'' and that the 
``majority of the rules appear to be the result of finishing 
tasks that were initiated before the Presidential transition 
period or the result of deadlines outside the agency's control 
(such as year-end statutory or court-ordered deadlines).''\73\ 
This finding is likely the result of the fact that most rules 
already go through the APA's lengthy notice-and-comment 
procedures, take years to adopt, and are submitted to Congress 
nearly a year before a presidential transition period. In fact, 
last-minute rulemakings generally survive changes in 
Administration.\74\
---------------------------------------------------------------------------
    \73\Administrative Conference of the United States, Administrative 
Conference Recommendation 2012-2: Midnight Rules 1-2 (June 14, 2012), 
https://www.acus.gov/sites/default/files/Final-Recommendation-2012-2-
Midnight-Rules.pdf.
    \74\H. Comm. on the Judiciary Majority Staff, Final Report to 
Chairman John Conyers, Jr.: Reining in the Imperial Presidency--Lessons 
and Recommendations Relating to the Presidency of George W. Bush, at 
181 (Mar. 2009) (footnotes omitted).
---------------------------------------------------------------------------
    For all of the foregoing reasons, we must respectfully 
oppose H.R. 5982 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.
                                   Ms. Chu.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.
                                   Mr. Peters

                                  [all]