[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

[[Page S3684]]

     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.
---------------------------------------------------------------------------
     \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

[[Page S3685]]

     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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