[House Report 110-700]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-700
======================================================================
CONGRESSIONAL REVIEW ACT IMPROVEMENT ACT
_______
June 5, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5593]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 5593) to amend title 5, United States Code, to make
technical amendments to certain provisions of title 5, United
States Code, enacted by the Congressional Review Act, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Performance Goals and Objectives................................. 6
Constitutional Authority Statement............................... 6
Advisory on Earmarks............................................. 6
Section-by-Section Analysis...................................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Purpose and Summary
H.R. 5593, the ``Congressional Review Act Improvement
Act,'' amends the Congressional Review Act (CRA) to reduce
administrative burdens and duplicative paperwork by repealing
the requirement that agencies submit copies of all final rules
and reports thereon to both the House and Senate. The bill
instead requires that the House and Senate receive a weekly
list of all final rules published in the Federal Register from
the Comptroller General, and to have such list printed in the
Congressional Record with a statement of referral for each
rule. Agencies would still be required to submit copies of
final rules and reports thereon to the House and Senate that
were not printed in the Federal Register. The bill does not
affect the authority of Congress under the CRA to disapprove an
agency rule.
Background and Need for the Legislation
BACKGROUND
The Congressional Review Act currently requires an agency
promulgating a rule\1\ to submit a report to the House and
Senate and to the Comptroller General at the Government
Accountability Office (GAO) that includes: (1) a copy of the
rule; (2) a concise general statement describing the rule,
including whether it is a major rule;\2\ and (3) the proposed
effective date of the rule.\3\ A rule may not take effect if
the report is not submitted.\4\ Each House must send a copy of
the report to the chairman and ranking minority member of each
jurisdictional committee.\5\ In addition, the promulgating
agency must submit to the Comptroller General: (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\6\ and the Unfunded Mandates Reform Act of
1995;\7\ and (3) any other relevant information required under
any other Act or Executive Order. Such information must also be
made ``available'' to the House and Senate.\8\
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\1\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. 804(3) (2007).
\2\A major rule is defined as a rule that will likely have an
annual effect on the economy of $100 million or more, increase costs or
prices for consumers, industries or state and local governments, or
have significant adverse effects on the economy.
\3\Pub. L. No. 104-121, subtitle E, 110 Stat. 857-74 (1996)
(codified as 5 U.S.C. Sec. Sec. 801-08).
\4\5 U.S.C. Sec. 801(a)(1)(A) (2007).
\5\5 U.S.C. Sec. 801(a)(1)(C) (2007).
\6\Pub. L. No. 96-353 (1980).
\7\Pub. L. No. 104-4 (1995).
\8\5 U.S.C. Sec. 801(a)(1)(B) (2007).
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The CRA authorizes Congress, pursuant to a joint resolution
of disapproval, to disapprove an agency rule that it determines
to be too burdensome, excessive, inappropriate, duplicative, or
otherwise objectionable. Such a resolution must be introduced
within the specified review period, which is at least 60
days.\9\ For a joint resolution of disapproval to become law,
it must pass both Houses of Congress and be signed by the
President. If a joint resolution is enacted into law, the rule
is deemed not to have had any effect at any time.\10\
Additionally, the CRA prohibits an agency from reissuing a rule
that is substantially the same as a disapproved rule.
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\9\5 U.S.C. Sec. 801(a)(3)-(4) (2007).
\10\5 U.S.C. Sec. 801(f) (2007).
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The CRA prescribes special expedited procedures for
consideration of the joint resolution in the Senate, but does
not provide similar procedures in the House.\11\ After
introduction of the joint resolution, it is referred by the
Parliamentarian to committees of jurisdiction. In the Senate,
if the committee has not reported it within 20 calendar days,
the resolution can be discharged upon a petition supported by
30 members, and placed on the calendar.\12\ In the House, there
is no such petition provision, and the resolution would be
treated like any bill.
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\11\5 U.S.C. Sec. 802(c) (2007).
\12\Id.
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If the review period has expired, Congress may still seek
to override an agency's rule through the enactment of
legislation to achieve that objective. The legislation,
however, would not have the various procedural enhancements
provided for under the CRA. For example, the Senate fast track
procedures, the automatic retroactivity of rule nullification,
and the prohibition against agency reissuance would not apply.
Since the CRA was signed into law in 1996, 47 joint
resolutions of disapproval have been introduced relating to 35
rules.\13\ None of the joint resolutions introduced in the
House was ultimately passed by the House. Four of the Senate
joint resolutions passed the Senate: (1) the nullification of
the Occupational Safety & Health Administration's (OSHA)
controversial ergonomics standards in March 2001;\14\ (2) the
Federal Communication Commission's 2003 rule relating to
broadcast media ownership;\15\ (3) a 2005 Department of
Agriculture rule relating to the establishment of minimal risk
zones for introduction of Mad Cow Disease;\16\ and (4) the
Federal Communication Commission's 2008 rule relating to
broadcast media ownership.\17\
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\13\Morton Rosenberg, Congressional Review of Agency Rulemaking: An
Update and Assessment of the Congressional Review Act After Ten Years,
Congressional Research Service Report for Congress, RL 30116, at 6 (May
8, 2008).
\14\S. J. Res. 6, 107th Cong. (2001) (enacted).
\15\S. J. Res. 17, 108th Cong. (2003).
\16\S. J. Res. 4, 109th Cong. (2005).
\17\S. J. Res. 28, 110th Cong. (2008).
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Only one of those Senate-passed joint resolutions, the
March 2001 nullification of the OSHA ergonomics standards, also
passed the House and was signed into law by the President.\18\
In that instance, there was an unusual confluence of factors,
including that: (1) the subject matter of the rule was
``contentious;'' (2) the rule had been promulgated toward the
end of an outgoing administration; (3) the current President,
who was of the other political party, supported repealing the
rule; and (4) the President and the majorities in both Houses
of Congress were of the same political party.\19\ In future
situations where those or similarly potent factors combine, it
is likely that the new rule will come to the attention of
Congress even without the elaborate notification process.
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\18\Pub. L. No. 107-5 (2001).
\19\Morton Rosenberg, Congressional Review of Agency Rulemaking: An
Update and Assessment of the Congressional Review Act After Ten Years,
Congressional Research Service Report for Congress, RL 30116, at 1 (May
8, 2008).
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NEED FOR THE LEGISLATION
While only one disapproval resolution has been signed into
law throughout the history of the CRA, those charged with
implementing this Act have faced significant administrative
burdens. As of March 31, 2008, the Comptroller General has
submitted rules and reports pursuant to section 801(a)(2)(A) of
the CRA to Congress on 731 major rules, and has cataloged
46,809 non-major rules.\20\ According to the House
Parliamentarian, in the 103rd Congress--the last full Congress
before the enactment of the CRA--the executive departments
transmitted 4,135 communications to the Speaker of the House
that warranted referral to committees.\21\ In the 109th
Congress, that number had risen to 10,742.\22\ As the
Parliamentarian testified last year at an oversight hearing on
the CRA before the Subcommittee on Commercial and
Administrative Law:
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\20\Id. at 6.
\21\Oversight of the Congressional Review Act: Hearing Before the
Subcomm. on Commercial and Administrative Law of the H. Comm. on the
Judiciary, 110th Cong. (2007) (statement of John V. Sullivan,
Parliamentarian, U.S. House of Representatives).
\22\Id.
This flow of paper poses a significant increment of
workload. Although it is relatively easy to identify
the appropriate committees of referral for the vast
majority of these communications, the sheer volume of
them affects not only the parliamentarians who must
assess their subject matter but also the clerks who
must move the paper and account for dates of
transmittal.\23\
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\23\Id.
In addition, agencies must often resort to having copies of
their rules hand-delivered by courier to the House and Senate
in order to comply with the CRA and the standards regarding
communications transmitted to Congress.\24\ Rules are
frequently returned to the agency, delaying their
implementation, for failing to comply with the CRA or these
other congressional requirements.\25\
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\24\Id.
\25\Id. For example, agency submissions to the House of
Representatives are often rejected because they lack a valid original
signature on the transmittal letter, do not have a completed
Congressional Review Act Form with an original signature, or are
missing pertinent enclosures.
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Hearings
The Committee on the Judiciary held no hearings on H.R.
5593. The Committee's Subcommittee on Commercial and
Administrative Law did hold 1 day of hearings, however, on the
Congressional Review Act, on November 6, 2007. Testimony was
received from the Honorable John V. Sullivan, Parliamentarian,
House of Representatives; Morton Rosenberg, Specialist in
American Public Law, Congressional Research Service; and
Professor Sally Katzen, George Mason University School of Law.
Mr. Sullivan also testified in the 109th Congress before the
Subcommittee on Commercial and Administrative Law about the
burdens of implementing the CRA on the Office of the
Parliamentarian, which was the same topic of his November 6,
2007 testimony.\26\ Mr. Sullivan's predecessor, Charles W.
Johnson, testified in the 105th Congress before the
Subcommittee on Commercial and Administrative Law on the same
issue.\27\
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\26\10th Anniversary of the Congressional Review Act: Hearing
Before the Subcomm. on Commercial and Administrative Law of the H.
Comm. on the Judiciary, 109th Cong. 38-42 (2006) (statement of John V.
Sullivan, Parliamentarian, U.S. House of Representatives).
\27\Congressional Review Act: Hearing Before the Subcomm. on
Commercial and Administrative Law of the H. Comm. on the Judiciary,
105th Cong. 12-21 (1997) (statement of Charles W. Johnson III,
Parliamentarian, U.S. House of Representatives).
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Committee Consideration
On April 24, 2008, the Subcommittee on Commercial and
Administrative Law met in open session and ordered the bill,
H.R. 5593, favorably reported, without amendment, by voice
vote, a quorum being present. On April 30, 2008, the Committee
met in open session and ordered the bill, H.R. 5593, favorably
reported without amendment, by voice vote, 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 there
were no recorded votes during the Committee's consideration of
H.R. 5593.
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. 5593, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 5, 2008.
Hon. John Conyers, Jr., 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. 5593, the
``Congressional Review Act Improvement Act.''
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,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 5593--Congressional Review Act Improvement Act.
H.R. 5593 would reduce reporting requirements for agencies
that submit information to the legislative branch under the
Congressional Review Act (CRA). CBO estimates that implementing
H.R. 5593 would have no significant impact on the federal
budget. Enacting the bill would not affect direct spending or
revenues. The bill contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
and would not affect the budgets of State, local, and tribal
governments.
Under current law, all agencies that promulgate a new rule
must submit a report to the House of Representatives, the
Senate, and the Government Accountability Office (GAO) that
contains a copy of the rule, a concise statement describing the
rule, and its proposed effective date. H.R. 5593 would amend
CRA to remove the requirement that agencies submit multiple
copies of each new rule to the Congress. Instead, federal
agencies would only submit rules and related documents to GAO,
which would then provide the Congress with a weekly list.
CBO estimates that reducing the reporting requirements
under CRA would not have a significant impact on agencies'
budgets because they would continue to prepare the same
reports.
The CBO staff contact for this estimate is Matthew
Pickford, who can be reached at 226-2860. This estimate was
approved by Theresea Gullo, Assistant Director for Budget
Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5593 would relieve unnecessary administrative burdens and
reduce duplicative paperwork by repealing the requirement that
agencies submit rules and reports to both the House and Senate
even when they are published in the Federal Register.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, Section 8 of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5593 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Congressional Review Act Improvement
Act.''
Sec. 2. Technical Amendments to the Congressional Review
Act. Section 2(a)(1) repeals the requirement that agencies
submit rules and reports that are published in the Federal
Register to both the House and Senate. It designates the
Comptroller General as the recipient of all of these materials.
Section 2(a)(1) also repeals the requirement that the House and
Senate provide copies of the rules and reports to the chairman
and Ranking Member of each committee with responsibility for
review of the rules.
Section 2(a)(2) amends subsection (e)(1) of the
Congressional Review Act to require the Comptroller General to
submit to the House and Senate a weekly report listing all
rules received since the last report was submitted. The report
must include a notation indicating whether or not the rule is a
major rule. Section 2(a)(2) requires the House and Senate to
publish in the Congressional Record each report received from
the Comptroller General and a statement of referral to the
committee or committees with responsibility for review of that
rule.
Section 2(b) makes various conforming changes. Section
2(b)(1) amends the provision in the CRA specifying when a major
rule takes effect to specify that, assuming no resolution of
disapproval is enacted, the rule takes effect on the date
occurring 60 days after the date when the Comptroller General
receives the report or the rule is published in the Federal
Register, or on the date the rule would otherwise take effect,
whichever is later. Section 2(b)(2) provides that a non-major
rule takes effect after submission to the Comptroller General.
Section 2(b)(4) specifies that the time when a joint resolution
of disapproval can be introduced begins when the report is
received by the Comptroller General.
Section 2(c) provides that the amendments in this bill
become effective 60 days after the date of enactment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
* * * * * * *
Sec. 801. Congressional review
(a)(1)(A) Before a rule can take effect, the Federal agency
promulgating such rule shall submit to [each House of the
Congress and to] the Comptroller General a report containing--
(i) * * *
* * * * * * *
(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) * * *
* * * * * * *
[(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.]
* * * * * * *
(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] Comptroller General
receives the report submitted under paragraph
(1); or
* * * * * * *
(4) Except for a major rule, a rule shall take effect as
otherwise provided by law after submission to [Congress] the
Comptroller General under paragraph (1).
* * * * * * *
(d)(1) * * *
(2)(A) * * *
(B) Nothing in this paragraph shall be construed to affect
the requirement under subsection (a)(1) that a report shall be
submitted to [Congress] the Comptroller General before a rule
can take effect.
* * * * * * *
[(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.]
(e)(1) The Comptroller General shall submit to each House of
Congress a weekly report containing a list of each rule
received by the Comptroller General pursuant to subsection (a)
since the last such report was submitted. The report shall
include a notation for each such rule indicating whether or not
the rule is a major rule.
(2) The Speaker of the House of Representatives shall cause
to be published in the Congressional Record, in that portion of
the Record relating to the proceedings of the House of
Representatives, each report received from the Comptroller
General under paragraph (1) since the last such publication in
the House portion of the Record and, for each rule listed in
such report, a statement of referral by the Speaker to the
committee or committees of the House with responsibility for
review of that rule.
(3) There shall be published in the Congressional Record, in
that portion of the Record relating to the proceedings of the
Senate, each report received from the Comptroller General under
paragraph (1) since the last such publication in the Senate
portion of the Record and, for each rule listed in such report,
a statement of the referral, if any, to the committee or
committees of the Senate with responsibility for review of that
rule.
* * * * * * *
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] the Comptroller
General and ending 60 days thereafter (excluding days either
House of Congress is adjourned for more than 3 days during a
session of Congress), the matter after the resolving clause of
which is as follows: ``That Congress disapproves the rule
submitted by the -- -- relating to -- --, and such rule shall
have no force or effect.'' (The blank spaces being
appropriately filled in).
(b)(1) * * *
(2) For purposes of this section, the term ``submission or
publication date'' means the later of the date on which--
(A) the [Congress] Comptroller General receives the
report submitted under section 801(a)(1); or
* * * * * * *