[Congressional Record Volume 142, Number 50 (Thursday, April 18, 1996)]
[Senate]
[Pages S3683-S3687]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONGRESSIONAL REVIEW TITLE OF H.R. 3136
Mr. NICKLES. Mr. President, I will submit for the Record a
statement which serves to provide a detailed explanation and a
legislative history for the congressional review title of H.R. 3136,
the Small Business Regulatory Enforcement Fairness Act of 1996. H.R.
3136 was passed by the Senate on March 28, 1996, and was signed by the
President the next day. Ironically, the President signed the
legislation on the first anniversary of the passage of S. 219, the
forerunner to the congressional review title. Last year, S. 219, passed
the Senate by a vote of 100 to 0 on March 29, 1995. Because title III
of H.R. 3136 was the product of negotiation with the Senate and did not
go through the committee process, no other expression of its
legislative history exists other than the joint statement made by
Senator Reid and myself immediately before passage of H.R. 3136 on
March 28. I am submitting a joint statement to be printed in the Record
on behalf of myself, as the sponsor of the S. 219, Senator Reid, the
prime cosponsor of S. 219, and Senator Stevens, the chairman of the
Committee on Governmental Affairs. This joint statement is intended to
provide guidance to the agencies, the courts, and other interested
parties when interpreting the act's terms. The same statement has been
submitted today in the House by the chairmen of the committees of
jurisdiction over the congressional review legislation.
The joint statement follows:
Statement for the Record by Senators Nickles, Reid, and Stevens
SUBTITLE E--Congressional Review Subtitle
Subtitle E adds a new chapter to the Administrative
Procedure Act (APA), ``Congressional Review of Agency
Rulemaking,'' which is codified in the United States Code as
chapter 8 of title 5. The congressional review chapter
creates a special mechanism for Congress to review new rules
issued by federal agencies (including modification, repeal,
or reissuance of existing rules). During the review period,
Congress may use expedited procedures to enact joint
resolutions of disapproval to overrule the federal rulemaking
actions. In the 104th Congress, four slightly different
versions of this legislation passed the Senate and two
different versions passed the House. Yet, no formal
legislative history document was prepared to explain the
legislation or the reasons for changes in the final language
negotiated between the House and Senate. This joint statement
of the authors on the congressional review subtitle is
intended to cure this deficiency.
Background
As the number and complexity of federal statutory programs
has increased over the last fifty years, Congress has come to
depend more and more upon Executive Branch agencies to fill
out the details of the programs it enacts. As complex as some
statutory schemes passed by Congress are, the implementing
regulations are often more complex by several orders of
magnitude. As more and more of Congress' legislative
functions have been delegated to federal regulatory agencies,
many have complained that Congress has effectively abdicated
its constitutional role as the national legislature in
allowing federal agencies so much latitude in implementing
and interpreting congressional enactments.
In many cases, this criticism is well founded. Our
constitutional scheme creates a delicate balance between the
appropriate roles of the Congress in enacting laws, and the
Executive Branch in implementing those laws. This legislation
will help to redress the balance, reclaiming for Congress
some of its policymaking authority, without at the same time
requiring Congress to become a super regulatory agency.
This legislation establishes a government-wide
congressional review mechanism for most new rules. This
allows Congress the opportunity to review a rule before it
takes effect and to disapprove any rule to which Congress
objects. Congress may find a rule to be too burdensome,
excessive, inappropriate or duplicative. Subtitle E uses the
mechanism of a joint resolution of disapproval which requires
passage by both houses of Congress and the President (or veto
by the President and a two-thirds' override by Congress) to
be effective. In other words, enactment of a joint resolution
of disapproval is the same as enactment of a law.
Congress has considered various proposals for reviewing
rules before they take effect
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for almost twenty years. Use of a simple (one-house),
concurrent (two-house), or joint (two houses plus the
President) resolution are among the options that have been
debated and in some cases previously implemented on a limited
basis. In INS v. Chadha, 462 U.S. 919 (1983), the Supreme
Court struck down as unconstitutional any procedure where
executive action could be overturned by less than the full
process required under the Constitution to make laws--that
is, approval by both houses of Congress and presentment to
the President. That narrowed Congress' options to use a
joint resolution of disapproval. The one-house or two-
house legislative veto (as procedures involving simple and
concurrent resolutions were previously called), was thus
voided.
Because Congress often is unable to anticipate the numerous
situations to which the laws it passes must apply, Executive
Branch agencies sometimes develop regulatory schemes at odds
with congressional expectations. Moreover, during the time
lapse between passage of legislation and its implementation,
the nature of the problem addressed, and its proper solution,
can change. Rules can be surprisingly different from the
expectations of Congress or the public. Congressional review
gives the public the opportunity to call the attention of
politically accountable, elected officials to concerns about
new agency rules. If these concerns are sufficiently serious,
Congress can stop the rule.
Brief procedural history of congressional review chapter
In the 104th Congress, the congressional review legislation
originated as S. 348, the ``Regulatory Oversight Act,'' which
was introduced on February 2, 1995. The text of S. 348 was
offered by its sponsors, Senators Don Nickles and Harry Reid,
as a substitute amendment to S. 219, the ``Regulatory
Transition Act of 1995.'' As amended, S. 219 provided for a
45-day delay on the effectiveness of a major rule, and
provided expedited procedures that Congress could use to pass
resolutions disapproving of the rule. On March 29, 1995, the
Senate passed the amended version of S. 219 by a vote of 100-
0. The Senate later substituted the text of S. 219 for the
text of H.R. 450, the House passed ``Regulatory Transition
Act of 1995.'' Although the House did not agree to a
conference on H.R. 450 and S. 219, both Houses continued to
incorporate the congressional review provisions in other
legislative packages. On May 25, the Senate Governmental
Affairs Committee reported out S. 343, the ``Comprehensive
Regulatory Reform Act of 1995,'' and S. 291, the ``Regulatory
Reform Act of 1995,'' both with congressional review
provisions. On May 26, 1995, the Senate Judiciary Committee
reported out a different version of S. 343, the
``Comprehensive Regulatory Reform Act of 1995,'' which also
included a congressional review provision. The congressional
review provision in S. 343 that was debated by the Senate was
quite similar to S. 219, except that the delay period in the
effectiveness of a major rule was extended to 60 days and the
legislation did not apply to rules issued prior to enactment.
A filibuster of S. 343, unrelated to the congressional review
provisions, led to the withdrawal of that bill.
The House next took up the congressional review legislation
by attaching a version of it (as section 3006) to H.R. 2586,
the first debt limit extension bill. The House made several
changes in the legislation that was attached to H.R. 2586,
including a provision that would allow the expedited
procedures also to apply to resolutions disapproving of
proposed rules, and provisions that would have extended the
60-day delay on the effectiveness of a major rule for any
period when the House or Senate was in recess for more
than three days. On November 9, 1995 both the House and
Senate passed this version of the congressional review
legislation as part of the first debt limit extension
bill. President Clinton vetoed the bill a few days later,
for reasons unrelated to the congressional review
provision.
On February 29, 1996, a House version of the congressional
review legislation was published in the Congressional Record
as title III of H.R. 994, which was scheduled to be brought
to the House floor in the coming weeks. The congressional
review title was almost identical to the legislation approved
by both Houses in H.R. 2586. On March 19, 1996, the Senate
adopted a congressional review amendment by voice vote to S.
942, which bill passed the Senate 100-0. The congressional
review legislation in S. 942 was similar to the original
version of S. 219 that passed the Senate on March 29, 1995.
Soon after passage of S. 942, representatives of the
relevant House and Senate committees and principal sponsors
of the congressional review legislation met to craft a
congressional review subtitle that was acceptable to both
Houses and would be added to the debt limit bill that was
scheduled to be taken up in Congress the week of March 24.
The final compromise language was the result of these joint
discussions and negotiations.
On March 28, 1996, the House and Senate passed title III,
the ``Small Business Regulatory Enforcement Fairness Act of
1996,'' as part of the second debt limit bill, H.R. 3136.
There was no separate vote in either body on the
congressional review subtitle or on title III of H.R. 3136.
However, title III received broad support in the House and
the entire bill passed in the Senate by unanimous consent.
The President signed H.R. 3136 into law on March 29, 1996,
exactly one year after the first congressional review bill
passed the Senate.
Submission of rules to Congress and to GAO
Pursuant to subsection 801(a)(1)(A), a federal agency
promulgating a rule must submit a copy of the rule and a
brief report about it to each House of Congress and to the
Comptroller General before the rule can take effect. In
addition to a copy of the rule, the report shall contain a
concise general statement relating to the rule, including
whether it is a major rule under the chapter, and the
proposed effective date of the rule. Because most rules
covered by the chapter must be published in the Federal
Register before they can take effect, it is not expected that
the submission of the rule and the report to Congress and the
Comptroller General will lead to any additional delay.
Section 808 provides the only exception to the requirement
that rules must be submitted to each House of Congress and
the Comptroller General before they can take effect.
Subsection 808(1) excepts specified rules relating to
commercial, recreational, or subsistence hunting, fishing,
and camping. Subsection 808(2) excepts certain rules that are
not subject to notice-and-comment procedures. It provides
that if the relevant agency finds ``for good cause . . . that
notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest, [such rules]
shall take effect at such time as the Federal agency
promulgating the rule determines.'' Although rules described
in section 808 shall take effect when the relevant Federal
agency determines pursuant to other provisions of law, the
federal agency still must submit such rules and the
accompanying report to each House of Congress and to the
Comptroller General as soon as practicable after
promulgation. Thus, rules described in section 808 are
subject to congressional review and the expedited
procedures governing joint resolutions of disapproval.
Moreover, the congressional review period will not begin
to run until such rules and the accompanying reports are
submitted to each House of Congress and the Comptroller
General.
In accordance with current House and Senate rules, covered
agency rules and the accompanying report must be separately
addressed and transmitted to the Speaker of the House (the
Capitol, Room H-209), the President of the Senate (the
Capitol, Room S-212), and the Comptroller General (GAO
Building, 441 G Street, N.W., Room 1139). Except for rules
described in section 808, any covered rule not submitted to
Congress and the Comptroller General will remain ineffective
until it is submitted pursuant to subsection 801(a)(1)(A). In
almost all cases, there will be sufficient time for an agency
to submit notice-and-comment rules or other rules, that must
be published to these legislative officers during normal
office hours. There may be rare instance, however, when a
federal agency must issue an emergency rule that is effective
upon actual notice and does not meet one of the section 808
exceptions. In such a rare case, the federal agency may
provide contemporaneous notice to the Speaker of the House,
the President of the Senate, and the Comptroller General.
These legislative officers have accommodated the receipt of
similar, emergency communications in the past and will
utilize the same means to receive emergency rules and reports
during nonbusiness hours. If no other means of delivery is
possible, delivery of the rule and related report by telefax
to the Speaker of the House, the President of the Senate, and
the Comptroller General shall satisfy the requirements of
subsection 801(a)(1)(A).
Additional delay in the effectiveness of major rules
Subsection 553(d) of the APA requires publication or
service of most substantive rules at least 30 days prior to
their effective date. Pursuant to subsection 801(a)(3)(A), a
major rule (as defined in subsection 804(2)) shall not take
effect until at least 60 calendar days after the later of the
date on which the rule and accompanying information is
submitted to Congress or the date on which the rule is
published in the Federal Register, if it is so published. If
the Congress passes a joint resolution of disapproval and the
President vetoes such resolution, the delay in the
effectiveness of a major rule is extended by subsection
801(a)(3)(B) until the earlier date on which either House of
Congress votes and fails to override the veto or 30 session
days \1\ after the date on which the Congress receives the
veto and objections from the President. By necessary
implication, if the Congress passes a joint resolution of
disapproval within the 60 calendar days provided in
subsection 801(a)(3)(A), the delay period in the
effectiveness of a major rule must be extended at least until
the President acts on the joint resolution or until the time
expires for the President to act. Any other result would be
inconsistent with subsection 801(a)(3)(B), which extends the
delay in the effectiveness of a major rule for a period of
time after the President vetoes a resolution.
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\1\ In the Senate, a ``session day'' is a calendar day in
which the Senate is in session. In the House of
Representatives, the same term is normally expressed as a
``legislative day.'' In the congressional review chapter,
however, the term ``session day'' means both a ``session
day'' of the Senate and a ``legislative day'' of the House of
Representatives unless the context of the sentence or
paragraph indicates otherwise.
---------------------------------------------------------------------------
Of course, if Congress fails to pass a joint resolution of
disapproval within the 60-day period provided by subsection
801(a)(3)(A), subsection 801(a)(3)(B) would not apply and
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would not further delay the effective date of the rule.
Moreover, pursuant to subsection 801(a)(5), the effective
date of a rule shall not be delayed by this chapter beyond
the date on which either house of Congress votes to reject a
joint resolution of disapproval.
Although it is not expressly provided in the congressional
review chapter, it is the authors' intent that a rule may
take effect if an adjournment of Congress prevents the
President from returning his veto and objections within the
meaning of the Constitution. Such will be the case if the
President does not act on a joint resolution within 10 days
(Sundays excepted) after it is presented to him, and ``the
Congress by their Adjournment prevent its Return'' within the
meaning of Article I, Sec. 7, cl. 2, or when the President
affirmatively vetoes a resolution during such an adjournment.
This is the logical result because Congress cannot act to
override these vetoes. Congress would have to begin anew,
pass a second resolution, and present it to the President in
order for it to become law. It is also the authors' intent
that a rule may take effect immediately if the President
returns a veto and his objections to Congress but Congress
adjourns its last session sine die before the expiration of
time provided in subsection 801(a)(3)(B). Like the situations
described immediately above, no subsequent Congress can act
further on the veto, and the next Congress would have to
begin anew, pass a second resolution of disapproval, and
present it to the President in order for it to become law.
Purpose of and exceptions to the delay of major rules
The reason for the delay in the effectiveness of a major
rule beyond that provided in APA subsection 553(d) is to try
to provide Congress with an opportunity to act on resolutions
of disapproval before regulated parties must invest the
significant resources necessary to comply with a major rule.
Congress may continue to use the expedited procedures to pass
resolutions of disapproval for a period of time after a major
rule takes effect, but it would be preferable for Congress to
act during the delay period so that fewer resources would be
wasted. To increase the likelihood that Congress would act
before a major rule took effect, the authors agreed on an
approximately 60-day delay period in the effective date of a
major rule, rather than an approximately 45-day delay period
in some earlier versions of the legislation.
There are four exceptions to the required delay in the
effectiveness of a major rule in the congressional review
chapter. The first is in subsection 801(c), which provides
that a major rule is not subject to the delay period of
subsection 801(a)(3) if the President determines in an
executive order that one of four specified situations exist
and notifies Congress of his determination. The second is in
subsection 808(1), which excepts specified rules relating to
commercial, recreational, or subsistence hunting, fishing,
and camping from the initial delay specified in subsection
801(a)(1)(A) and from the delay in the effective date of a
major rule provided in subsection 801(a)(3). The third is in
subsection 808(2), which excepts certain rules from the
initial delay specified in subsection 801(a)(1)(A) and from
the delay in the effective date of a major rule provided in
subsection 801(a)(3) if the relevant agency finds ``for good
cause . . . that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public
interest.'' This ``good cause'' exception in subsection
808(2) is taken from the APA and applies only to rules which
are exempt from notice and comment under subsection 553(b)(B)
or an analogous statute. The fourth exception is in
subsection 804(2). Any rule promulgated under the
Telecommunications Act of 1996 or any amendments made by that
Act that otherwise could be classified as a ``major rule'' is
exempt from that definition and from the 60-day delay in
section 801(a)(3). However, such an issuance still would fall
within the definition of ``rule'' and would be subject to the
requirements of the legislation for non-major rules. A
determination under subsection 801(c), subsection 804(2), or
section 808 shall have no effect on the procedures to enact
joint resolutions of disapproval.
A court may not stay or suspend the effectiveness of a rule beyond the
period specified in section 801 simply because a resolution of
disapproval is pending in Congress
The authors discussed the relationship between the period
of time that a major rule is delayed and the period of time
during which Congress could use the expedited procedures in
section 802 to pass a resolution of disapproval. Although it
would be best for Congress to act pursuant to this chapter
before a major rule goes into effect, it was recognized that
Congress could not often act immediately after a rule was
issued because it may be issued during a recesses of
Congress, shortly before such recesses, or during other
periods when Congress cannot devote the time to complete
prompt legislative action. Accordingly, the authors
determined that the proper public policy was to give Congress
an adequate opportunity to deliberate and act on joint
resolutions of disapproval, while ensuring that major rules
could go into effect without unreasonable delay. In short,
the authors decided that major rules could take effect after
an approximate 60-day delay, but the period governing the
expedited procedures in section 802 for review of joint
resolution of disapproval would extend for a period of time
beyond that.
Accordingly, courts may not stay or suspend the
effectiveness of any rule beyond the periods specified in
section 801 simply because a joint resolution is pending
before Congress. Such action would be contrary to the many
express provisions governing when different types of rules
may take effect. Such court action also would be contrary to
the authors' intent because it would upset an important
compromise on how long a delay there should be on the
effectiveness of a major rule. The final delay period was
selected as a compromise between the period specified in the
version that passed the Senate on March 19, 1995, and the
version that passed both Houses on November 9, 1995. It is
also the authors' belief that such court action would be
inconsistent with the principles of (and potentially
violate) the Constitution, art. I, Sec. 7, cl. 2, in that
courts may not give legal effect to legislative action
unless it results in the enactment of law pursuant that
Clause. See INS v. Chadha, 462 U.S. 919 (1983). Finally,
the authors intend that a court may not predicate a stay
on the basis of possible future congressional action
because it would be improper for a court to rule that the
movant had demonstrated a ``likelihood of success on the
merits,'' unless and until a joint resolution is enacted
into law. A judicial stay prior to that time would raise
serious separation of powers concerns because it would be
tantamount to the court making a prediction of what
Congress is likely to do and then exercising its own power
in furtherance of that prediction. Indeed, the authors
intend that Congress may have been reluctant to pass
congressional review legislation at all if its action or
inaction pursuant to this chapter would be treated
differently than its action or inaction regarding any
other bill or resolution.
Time periods governing passage of joint resolutions of disapproval
Subsection 802(a) provides that a joint resolution
disapproving of a particular rule may be introduced in either
House beginning on the date of the rule and accompanying
report are received by Congress until 60 calendar days
thereafter (excluding days either House of Congress is
adjourned for more than 3 days during a session of Congress).
But if Congress did not have sufficient time in a previous
session to introduce or consider a resolution of disapproval,
as set forth in subsection 801(d), the rule and accompanying
report will be treated as if it were first received by
Congress on the 15th session day in the Senate, or 15th
legislative day in the House, after the start of its next
session. When a rule was submitted near the end of a Congress
or prior to the start of the next Congress, a joint
resolution of disapproval regarding that rule may be
introduced in the next Congress beginning on the 15th session
day in the Senate or the 15th legislative day in the House
until 60 calendar days thereafter (excluding days either
House of Congress is adjourned for more than 3 days during
the session) regardless of whether such a resolution was
introduced in the prior Congress. Of course, any joint
resolution pending from the first session of a Congress, may
be considered further in the nest session of the same
Congress.
Subsections 802(c)-(d) specify special procedures that
apply to the consideration of a joint resolution of
disapproval in the Senate. Subsection 803(c) allows 30
Senators to petition for the discharge of resolution from a
Senate committee after a specified period of time (the later
of 20 calendar days after the rule is submitted to Congress
or published in the Federal Register, if it is so published).
Subsection 802(d) specifies procedures for the consideration
of a resolution on the Senate floor. Such a resolution is
highly privileged, points or order are waived, a motion to
postpone consideration is not in order, the resolution is
unamendable, and debate on the joint resolution and ``on all
debatable motions and appeals in connection therewith''
(including a motion to proceed) is limited to no more than 10
hours.
Subsection 802(e) provides that the special Senate
procedures specified in subsections 802(c)-(d) shall not
apply to the consideration of any joint resolution of
disapproval of a rule after 60 session days of the Senate
beginning with the later date that rule is submitted to
Congress or published, if it is so published. However, if a
rule and accompanying report are submitted to Congress
shortly before the end of a session or during an intersession
recess as described in subsection 801(d)(1), the special
Senate procedures specified in subsections 802(c)-(d) shall
expire 60 session days after the 15th session day of the
succeeding session of Congress--or on the 75th session day
after the succeeding session of Congress first convenes. For
purposes of subsection 802(e), the term ``session day''
refers only to a day the Senate is in session, rather than a
day both Houses are in session. However, in computing the
time specified in subsection 801(d)(1), that subsection
specifies that there shall be an additional period of review
in the next session if either House did not have an adequate
opportunity to complete action on a joint resolution. Thus,
if either House of Congress did not have adequate time to
consider a joint resolution in a given session (60 session
days in the Senate and 60 legislative days in the House),
resolutions of disapproval may be introduced or reintroduced
in both Houses in the next session, and the special Senate
procedures specified in subsection 802(c)-(d) shall apply in
the next session of the Senate.
If a joint resolution of disapproval is pending when the
expedited Senate procedures specified in subsections 802(c)-
(d) expire, the resolution shall not die in either House but
shall simply be considered pursuant to the
[[Page S3686]]
normal rules of either House--with one exception. Subsection
802(f) sets forth one unique provision that does not expire
in either House. Subsection 802(f) provides procedures for
passage of a joint resolution of disapproval when one House
passes a joint resolution and transmits it to the other House
that has not yet completed action. In both Houses, the joint
resolution of the first House to act shall not be referred to
a committee but shall be held at the desk. In the Senate, a
House-passed resolution may be considered directly only under
normal Senate procedures, regardless of when it is received
by the Senate. A resolution of disapproval that originated in
the Senate may be considered under the expedited procedures
only during the period specified in subsection 802(e).
Regardless of the procedures used to consider a joint
resolution in either House, the final vote of the second
House shall be on the joint resolution of the first House (no
matter when that vote takes place). If the second House
passes the resolution, no conference is necessary and the
joint resolution will be presented to the President for his
signature. Subsection 802(f) is justified because subsection
802(a) sets forth the required language of a joint resolution
in each House, and thus, permits little variance in the joint
resolutions that could be introduced in each House.
Effect of enactment of a joint resolution of disapproval
Subsection 801(b)(1) provides that: ``A rule shall not take
effect (or continue), if the Congress enacts a joint
resolution of disapproval, described under section 802, of
the rule.'' Subsection 801(b)(2) provides that such a
disapproved rule ``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.'' Subsection 801(b)(2) is necessary to prevent
circumvention of a resolution disapproval. Nevertheless,
it may have a different impact on the issuing agencies
depending on the nature of the underlying law that
authorized the rule.
If the law that authorized the disapproved rule provides
broad discretion to the issuing agency regarding the
substance of such rule, the agency may exercise its broad
discretion to issue a substantially different rule. If the
law that authorized the disapproved rule did not mandate the
promulgation of any rule, the issuing agency may exercise its
discretion not to issue any new rule. Depending on the law
that authorized the rule, an issuing agency may have both
options. But if an agency is mandated to promulgate a
particular rule and its discretion in issuing the rule is
narrowly circumscribed, the enactment of a resolution of
disapproval for that rule may work to prohibit the reissuance
of any rule. The authors intend the debate on any resolution
of disapproval to focus on the law that authorized the rule
and make the congressional intent clear regarding the
agency's options or lack thereof after enactment of a joint
resolution of disapproval. It will be the agency's
responsibility in the first instance when promulgating the
rule to determine the range of discretion afforded under the
original law and whether the law authorizes the agency to
issue a substantially different rule. Then, the agency must
give effect to the resolution of disapproval.
Limitation on judicial review of congressional or administrative
actions
Section 805 provides that a court may not review any
congressional or administrative ``determination, finding,
action, or omission under this chapter.'' Thus, the major
rule determinations made by the Administrator of the Office
of Information and Regulatory Affairs of the Office of
Management and Budget are not subject to judicial review. Nor
may a court review whether Congress complied with the
congressional review procedures in this chapter. This latter
limitation on the scope of judicial review was drafted in
recognition of the constitutional right of each House of
Congress to ``determine the Rules of its Proceedings,'' U.S.
Const., art. I, Sec. 5, cl. 2, which includes being the final
arbiter of compliance with such Rules.
The limitation on a court's review of subsidiary
determination or compliance with congressional procedures,
however, does not bar a court from giving effect to a
resolution of disapproval that was enacted into law. A court
with proper jurisdiction may treat the congressional
enactment of a joint resolution of disapproval as it would
treat the enactment of any other federal law. Thus, a court
with proper jurisdiction may review the resolution of
disapproval and the law that authorized the disapproved rule
to determine whether the issuing agency has the legal
authority to issue a substantially different rule. The
language of subsection 801(g) is also instructive. Subsection
801(g) prohibits a court or agency from inferring any intent
of the Congress only when ``Congress does not enact a joint
resolution of disapproval,'' or by implication, when it has
not yet done so. In deciding cases or controversies properly
before it, a court or agency must give effect to the intent
of the Congress when such a resolution is enacted and becomes
the law of the land. The limitation on judicial review in no
way prohibits a court from determining whether a rule is
in effect. For example, the authors expect that a court
might recognize that a rule has no legal effect due to the
operation of subsections 801(a)(1)(A) or 801(a)(3).
Enactment of a joint resolution of disapproval for a rule that was
already in effect
Subsection 801(f) provides that: ``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.'' Application of
this subsection should be consistent with existing judicial
precedents on rules that are deemed never to have taken
effect.
Agency information required to be submitted to GAO
Pursuant to subsection 801(a)(1)(B), the federal agency
promulgating the rule shall submit to the Comptroller General
(and make available to each House) (i) a complete copy of the
cost-benefit analysis of the rule, if any, (ii) the agency's
actions related to the Regulatory Flexibility Act, (iii) the
agency's actions related to the Unfunded Mandates Reform Act,
and (iv) ``any other relevant information or requirements
under any other Act and any relevant Executive Orders.''
Pursuant to subsection 801(a)(1)(B), this information must be
submitted to the Comptroller General on the day the agency
submits the rule to Congress and to GAO.
The authors intend information supplied in conformity with
subsection 801(a)(1)(B)(iv) to encompass both agency-specific
statutes and government-wide statutes and executive orders
that impose requirements relevant to each rule. Examples of
agency-specific statutes include information regarding
compliance with the law that authorized the rule and any
agency-specific procedural requirements, such as section 9 of
the Consumer Product Safety Act, as amended, 15 U.S.C.
Sec. 2054 (procedures for consumer product safety rules);
section 6 of the Occupational Safety and Health Act of 1970,
as amended, 29 U.S.C. Sec. 655 (promulgation of standards);
section 307(d) of the Clean Air Act, as amended, 42 U.S.C.
Sec. 7607(d) (promulgation of rules); and section 501 of the
Department of Energy Organization Act, 42 U.S.C. Sec. 7191
(procedure for issuance of rules, regulations, and orders).
Examples of government-wide statutes include other chapters
of the Administrative Procedure Act, 5 U.S.C. Sec. Sec. 551-
559 and 701-706; and the Paperwork Reduction Act, as amended,
44 U.S.C. Sec. Sec. 3501-3520.
Examples of relevant executive orders include E.O. No.
12866 (Sept. 30, 1993) (Regulatory Planning and Review); E.O.
No. 12606 (Sept. 2, 1987) (Family Considerations in Policy
Formulation and Implementation); E.O. No. 12612 (Oct. 26,
1987) (Federalism Considerations in Policy Formulation and
Implementation); E.O. No. 12630 (Mar. 15, 1988) (Government
Actions and Interference with Constitutionally Protected
Property Rights); E.O. No. 23875 (Oct. 26, 1993) (Enhancing
the Intergovernmental Partnership); E.O. No. 12778 (Oct. 23,
1991) (Civil Justice Reform); E.O. No. 12988 (Feb. 5, 1996)
(Civil Justice Reform) (effective May 5, 1996).
GAO reports on major rules
Fifteen days after the federal agency submits a copy of a
major rule and report to each House of Congress and the
Comptroller General, the Comptroller General shall prepare
and provide a report on the major rule to the committee of
jurisdiction in each House. Subsection 801(a)(2)(B) requires
agencies to cooperate with the Comptroller General in
providing information relevant to the Comptroller General's
reports on major rules. Given the 15-day deadline for these
reports, it is essential that the agencies' initial
submission to the General Accounting Office (GAO) contain all
of the information necessary for GAO to conduct its analysis.
At a minimum, the agency's submission must include the
information required of all rules pursuant to 801(a)(1)(B).
Whenever possible, OMB should work with GAO to alert GAO when
a major rule is likely to be issued and to provide as much
advance information to GAO as possible on such proposed major
rule. In particular, OMB should attempt to provide the
complete cost-benefit analysis on a major rule, if any, well
in advance of the final rule's promulgation.
It also is essential for the agencies to present this
information in a format that will facilitate the GAO's
analysis. The authors expect that GAO and OMB will work
together to develop, to the greatest extent practicable,
standard formats for agency submissions. OMB also should
ensure that agencies follow such formats. The authors also
expect that agencies will provide expeditiously any
additional information that GAO may require for a thorough
report. The authors do not intend the Comptroller General's
reports to be delayed beyond the 15-day deadline due to lack
of information or resources unless the committees of
jurisdiction indicate a different preference. Of course, the
Comptroller General may supplement his initial report at any
time with any additional information, on its own, or at the
request of the relevant committees or jurisdiction.
Covered agencies and entities in the executive branch
The authors intend this chapter to be comprehensive in the
agencies and entities that are subject to it. The term
``Federal agency'' in subsection 804(1) was taken from 5
U.S.C. Sec. 551(1). That definition includes ``each authority
of the Government'' that is not expressly excluded by
subsection 551(1)(A)-(H). With those few exceptions, the
objective was to cover each and every government entity,
whether it is a department, independent agency, independent
establishment, or government corporation. This is because
Congress is enacting the congressional review
[[Page S3687]]
chapter, in large part, as an exercise of its oversight and
legislative responsibility. Regardless of the justification
for excluding or granting independence to some entities from
the coverage of other laws, that justification does not apply
to this chapter, where Congress has an interest in exercising
its constitutional oversight and legislative responsibility
as broadly as possible over all agencies and entities within
its legislative jurisdiction.
In some instances, federal entities and agencies issue
rules that are not subject to the traditional 5 U.S.C.
Sec. 553(c) rulemaking process. However, the authors intend
the congressional review chapter to cover every agency,
authority, or entity covered by subsection 551(1) that
establishes policies affecting any segment of the general
public. Where it was necessary, a few special exceptions
were provided, such as the exclusion for the monetary
policy activities of the Board of Governors of the Federal
Reserve System, rules of particular applicability, and
rules of agency management and personnel. Where it was not
necessary, no exemption was provided and no exemption
should be inferred from other law. This is made clear by
the provision of section 806 which states that the Act
applies notwithstanding any other provision of law.
Definition of a ``major rule''
The definition of a ``major rule'' in subsection 804(2) is
taken from President Reagan's Executive Order 12291. Although
President Clinton's Executive Order 12866 contains a
definition of a ``significant regulatory action'' that is
seemingly as broad, several of the Administration's
significant rule determinations under Executive Order 12866
have been called into question. The authors intend the term
``major rule'' in this chapter to be broadly construed,
including the non-numerical factors contained in the
subsections 804(2)(B) and (C).
Pursuant to subsection 804(2), the Administrator of the
Office of Information and Regulatory Affairs in the Office of
Management and Budget (the Administrator) must make the major
rule determination. The authors intend that centralizing this
function in the Administrator will lead to consistency across
agency lines. Moreover, from 1981-93 OIRA staff interpreted
and applied the same major rule definition under E.O. 12291.
Thus, the Administrator should rely on guidance documents
prepared by OIRA during that time and previous major rule
determinations from that Office as a guide in applying the
statutory definition to new rules.
Certain covered agencies, including many ``independent
agencies,'' include their proposed rules in the Unified
Regulatory Agenda published by OMB but do not normally submit
their final rules to OMB for review. Moreover, interpretative
rules and general statements of policy are not normally
submitted to OMB for review. Nevertheless, it is the
Administrator that must make the major rule determination
under this chapter whenever a new rule is issued. The
Administrator may request the recommendation of any agency
covered by this chapter on whether a proposed rule is a major
rule within the meaning of subsection 804(2), but the
Administrator is responsible for the ultimate determination.
Thus, all agencies or entities covered by this chapter will
have to coordinate their rulemaking activity with OIRA so
that the Administrator may make the final, major rule
determination.
Scope of rules covered
The authors intend this chapter to be interpreted broadly
with regard to the type and scope of rules that are subject
to congressional review. The term ``rule'' in subsection
804(3) begins with the definition of a ``rule'' in subsection
551(4) and excludes three subsets of rules that are modeled
on APA sections 551 and 553. This definition of a rule does
not turn on whether a given agency must normally comply with
the notice-and-comment provisions of the APA, or whether
the rule at issue is subject to any other notice-and-
comment procedures. The definition of ``rule'' in
subsection 551(4) covers a wide spectrum of activities.
First, there is formal rulemaking under section 553 that
must adhere to procedures of sections 556 and 557 of title
5. Second, there is informal rulemaking, which must comply
with the notice-and-comment requirements of subsection
553(c). Third, there are rules subject to the requirements
of subsection 552(a)(1) and (2). This third category of
rules normally either must be published in the Federal
Register before they can adversely affect a person, or
must be indexed and made available for inspection and
copying or purchase before they can be used as precedent
by an agency against a non-agency party. Documents covered
by subsection 552(a) include statements of general policy,
interpretations of general applicability, and
administrative staff manuals and instructions to staff
that affect a member of the public. Fourth, there is a
body of materials that fall within the APA definition of
``rule'' and are the product of agency process, but that
meet none of the procedural specifications of the first
three classes. These include guidance documents and the
like. For purposes of this section, the term rule also
includes any rule, rule change, or rule interpretation by
a self regulatory organization that is approved by a
Federal agency. Accordingly, all ``rules'' are covered
under this chapter, whether issued at the agency's
initiative or in response to a petition, unless they are
expressly excluded by subsections 804(3)(A)-(C). The
authors are concerned that some agencies have attempted to
circumvent notice-and-comment requirements by trying to
give legal effect to general statements of policy,
``guidelines,'' and agency policy and procedure manuals.
The authors admonish the agencies that the APA's broad
definition of ``rule'' was adopted by the authors of this
legislation to discourage circumvention of the
requirements of chapter 8.
The definition of a rule in subsection 551(4) covers most
agency statements of general applicability and future effect.
Subsection 804(3)(A) excludes ``any rule of particular
applicability, including a rule that approves or prescribes
rates, wages, prices, services, or allowances therefore,
corporate and financial structures, reorganizations, mergers,
or acquisitions thereof, or accounting practices or
disclosures bearing on any of the foregoing'' from the
definition of a rule. Many agencies, including the Treasury,
Justice, and Commerce Departments, issue letter rulings or
other opinion letters to individuals who request a specific
ruling on the facts of their situation. These letter rulings
are sometimes published and relied upon by other people in
similar situations, but the agency is not bound by the
earlier rulings even on facts that are analogous. Thus, such
letter rulings or opinion letters do not fall within the
definition of a rule within the meaning of subsection 804(3).
The different types of rules issued pursuant to the
internal revenue laws of the United States are good examples
of the distinction between rules of general and particular
applicability. IRS private letter rulings and Customs Service
letter rulings are classic examples of rules of particular
applicability, notwithstanding that they may be cited as
authority in transactions involving the same circumstances.
Examples of substantive and interpretative rules of general
applicability will include most temporary and final Treasury
regulations issued pursuant to notice-and-comment rulemaking
procedures, and most revenue rulings, revenue procedures, IRS
notices, and IRS announcements. It does not matter that these
later types of rules are issued without notice-and-comments
rulemaking procedures or that they are accorded less
deference by the courts than notice-and-comment rules. In
fact, revenue rulings have been described by the courts as
the ``classic example of an interpretative rul[e]'' within
the meaning of the APA. See Wing v. Commissioner, 81 T.C. 17,
26 (1983). The test is whether such rules announce a general
statement of policy or an interpretation of law of general
applicability.
Most rules or other agency actions that grant an approval,
license, registration, or similar authority to a particular
person or particular entities, or grant or recognize an
exemption or relieve a restriction for a particular person or
particular entities, or permit new or improved applications
of technology for a particular person or particular entities,
or allow the manufacture, distribution, sale, or use of a
substance or product are exempted under subsection 804(3)(A)
from the definition of a rule. This is probably the largest
category of agency actions excluded from the definition of a
rule. Examples include import and export licenses, individual
rate and tariff approvals, wetlands permits, grazing permits,
plant licenses or permits, drug and medical device approvals,
new source review permits, hunting and fishing take limits,
incidental take permits and habitat conservation plans,
broadcast licenses, and product approvals, including
approvals that set forth the conditions under which a product
may be distributed.
Subsection 804(3)(B) excludes ``any rule relating to agency
management or personnel'' from the definition of a rule.
Pursuant to subsection 804(3)(C), however, a ``rule of agency
organization, procedure, or practice,'' is only excluded if
it ``does not substantially affect the rights or obligations
of non-agency parties.'' The authors' intent in these
subsections is to exclude matters of purely internal agency
management and organization, but to include matters that
substantially affect the rights or obligations of outside
parties. The essential focus of this inquiry is not on the
type of rule but on its effect on the rights or obligations
of non-agency parties.
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