[Congressional Record Volume 146, Number 99 (Wednesday, July 26, 2000)]
[House]
[Pages H7062-H7064]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  OMISSION FROM THE CONGRESSIONAL RECORD OF TUESDAY, JULY 25, 2000 AT 
                              PAGE H-6853

  (The following addition to the statement of the gentleman from 
Wisconsin (Mr. Ryan) was omitted from the Congressional Record of 
Tuesday, July 25, 2000 at page H6853.)
  Mr. Speaker, H.R. 4924, the ``Truth in Regulating Act of 2000,'' is a 
bi-partisan, good government bill. It establishes a regulatory analysis 
function within the General Accounting Office (GAO). This function is 
intended to enhance Congressional responsibility for regulatory 
decisions developed under the laws Congress enacts. It is the product 
of the leadership over the last few years by Small Business 
Subcommittee Chairwoman on Regulatory Reform and Paperwork Reduction, 
Sue Kelly.
  The most basic reason for supporting this bill is Constitutional: 
Just as Congress needs a Congressional Budget Office (CBO) to check and 
balance the executive Branch in the budget process, so it needs an 
analytic capability to check and balance the Executive Branch in the 
regulatory process. GAO is a logical location since it already has some 
regulatory review responsibilities under the Congressional Review Act 
(CRA).
  Article I, Section 1 of the U.S. Constitution vests all legislative 
powers in the U.S. Congress. While Congress may not delegate its 
legislative functions, it routinely authorizes Executive Branch 
agencies to issue rules that implement laws passed by Congress. 
Congress has become increasingly concerned about its responsibility to 
oversee agency rulemaking, especially due to the extensive costs and 
impacts of Federal rules.
  During the 105th congress, the House Government Reform Subcommittee 
on National Economic Growth, Natural Resources, and Regulatory Affairs, 
chaired by David McIntosh, held a hearing on Mrs. Kelly's earlier 
regulatory analysis bill (H.R. 1704), which sought to establish a new, 
freestanding Congressional agency. The Subcommittee then marked up and 
reported her bill (H. Rept. 105-441, Part 2). H.R. 1704 called for the 
establishment of a new Legislative Branch Congressional Office of 
Regulatory Analysis (CORA) to analyze all major rules and report to 
Congress on potential costs, benefits, and alternative approaches that 
could achieve the same regulatory goals at lower costs. This agency was 
intended to aid Congress in analyzing Federal regulations. The 
Committee Report stated, ``Congress needs the expertise that CORA would 
provide to carry out its duty under the CRA. Currently, Congress does 
not have the information it needs to carefully evaluate regulations. 
The only analysis it has to rely on are those provided by the agencies 
which promulgate the rules. There is no official, third-party analysis 
of new regulations'' (p. 5).
  Unfortunately, CORA supporters in the 105th Congress could not 
overcome the resistance of the defenders of the regulatory status quo. 
Opponents argued against creating a new Congressional agency on the 
basis of fiscal conservatism. By this logic, Congress ought to abolish 
CBO, as an even more heroic demonstration of fiscal conservatism in 
action. Of course, most of us recognize that dismantling CBO, however 
penny wise, would be pound foolish.
  In the 106th Congress, Government Reform Subcommittee Chairman David 
McIntosh and Small Business Subcommittee Chairwoman Sue Kelly, seeking 
to accommodate the prejudice against a freestanding agency, introduced 
bills (H.R. 3521 and H.R. 3669, respectively) to establish a CORA 
function within GAO, which is an existing Legislative Branch agency. 
McIntosh and Kelly introduced their bills in January and February 2000. 
On May 10th, the Senate passed its own regulatory analysis legislation, 
S. 1198, the ``Truth

[[Page H7063]]

in Regulating Act of 2000,'' by unanimous consent. Like the McIntosh 
and Kelly bills, the Senate legislation would also establish a 
regulatory analysis function within GAO.
  During the 106th Congress, the Government Reform Committee did not 
hold a hearing specifically on H.R. 4924 but the Subcommittee on 
National Economic Growth, Natural Resources, and Regulatory Affairs did 
hold a June 14th hearing, entitled ``Does Congress Delegate Too Much 
Power to Agencies and What Should be Done About It?'' At the hearing, 
Senator Sam Brownback and Representative J.D. Hayworth testified that 
Congress needs to assume more responsibility for regulations. Dr. Wendy 
Lee Gramm, Director, Regulatory Studies Program, Mercatus Center, 
George Mason University and former Administrator of the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget (OMB); Alan Raul, partner, Sidley & Austin and former OMB 
General Counsel; and David Schoenbrod, Professor of Law, New York Law 
School and Adjunct Scholar, Cato Institute, all affirmed that Congress 
needs to conduct more oversight of regulations, especially regulatory 
proposals lacking an explicit delegation of authority from Congress.
  Witnesses discussed the need for a CORA function that would assist 
Congress in assuming more responsibility for agency rules, which now 
impose over $700 billion in annual off-budget costs on the American 
people. Witnesses stressed the need for analytical assistance so that 
Congress could especially provide timely comment on proposed rules, 
while there is still an opportunity to influence the cost, scope and 
content of the final agency action. Witnesses stated that a regulatory 
analysis function should: (a) take into account Congressional 
legislative intent; (b) examine other, less costly regulatory and 
nonregulatory alternative approaches besides those in an agency 
proposal; and (c) identify additional, non-agency sources of data on 
benefits, costs, and impacts of an agency's proposal.
  Dr. Gramm testified that, ``there's clearly a need for more and 
better analysis that is independent of the agency writing the 
regulation . . . In my view, Congress cannot carry out its 
responsibilities effectively without such analysis.'' She continued by 
recommending, ``a shadow OIRA, and that is to perform independent, 
high-quality analysis of agency regulations at the proposal stage . . . 
whether or not the agency has considered the different alternatives, 
what might be other alternatives . . . I would suggest that all this 
analysis be done at the proposal stage so that this information can be 
put into the rulemaking record.''
  On June 26th, Chairwoman Kelly and Chairman McIntosh introduced H.R. 
4744, which made several needed improvements to the Senate-passed S. 
1198, along the lines suggested by the witnesses at the June 14th 
hearing. For example, whereas S. 1198 merely permits GAO to assist 
Congress in submitting timely comments on proposed regulations during 
the public comment period, H.R. 4744 would require GAO to provide such 
assistance. This was a critical improvement, because it is only by 
commenting on proposed rules during the public comment period that 
Congress has any real opportunity to influence the cost, scope, and 
content of regulation. In addition, unlike the Senate bill, H.R. 4744 
would require GAO to review not only the agency's data but also the 
public's data to assure a more balanced evaluation, analyze not only 
rules costing $100 million or more but also rules with a significant 
impact on small businesses, and examine whether alternatives not 
considered by the agencies might achieve the same goal in a more cost-
effective manner or with greater net benefits.
  On June 29th, the Government Reform Committee favorably reported H.R. 
4744, with a thorough discussion of issues in its accompanying report 
(H. Rept. 106-772).
  H.R. 4924, introduced July 24th, includes only two--or, more 
accurately, one and a half--of H.R. 4744's improvements to S. 1198: (a) 
inclusion, within the scope of GAO's purview, of agency rules with a 
significant impact on small businesses; and (b) a directive to GAO to 
submit its independent evaluation of proposed rules within the public 
comment period, albeit only when doing so is ``practicable.'' House 
Report 106-772 explains the basis for these improvements. Nonetheless, 
I am deeply disappointed that we could not persuade the Honorable 
gentleman from California that timely comments on proposed rules are 
better than untimely or late comments. But, I understand that, in 
politics, half a loaf--or, in this case, a fraction of a loaf--may 
still be better than none. H.R. 4924 is, in my judgment, inferior to 
H.R. 4744, which is itself a watered down version of the complete 
reform needed to implement Congress' Constitutional responsibility for 
regulatory oversight. But, it is a step in the right direction. And, it 
will give reformers something to build upon in the next Congress.
  H.R. 4924 is truly a modest proposal. It does not require or expect 
GAO to conduct any new Regulatory Impact Analyses (RIAs), cost-benefit 
analyses, or other impact analyses. However, GAO's independent 
evaluation should lead the agencies to prepare any missing cost/
benefit, small business impact, federalism impact, or any other missing 
analysis. For example, after the McIntosh Subcommittee insisted that 
the Department of Labor prepare a missing RIA for its Birth and 
Adoption Unemployment Compensation (``Baby UI'') proposed rule, Labor 
finally prepared one.
  Unfortunately, H.R. 4924 excludes from GAO's purview major rules 
promulgated by the independent regulatory agencies, such as the Federal 
Communications Commission, the Federal Trade Commission, and the 
Securities and Exchange Commission, which regulate major sectors of the 
U.S. economy. Since the analyses accompanying rules issued by the 
independent regulatory agencies are often incomplete or inadequate, 
this omission is unfortunate and makes the bill less useful than either 
S. 1198 or H.R. 4744.
  Here's how H.R. 4924 works. The Chairman or Ranking Member of a 
Committee of jurisdiction may request that GAO submit an independent 
evaluation to the Committee on a major proposed rule during the public 
comment period or on a major final rule within 180 days. GAO's analysis 
shall include an evaluation of the potential benefits of the rule, the 
potential costs of the rule, alternative approaches in the rulemaking 
record, and the various impact analyses.
  Congress currently has two opportunities to review agency regulatory 
actions. Under the Administrative Procedure Act (APA), Congress can 
comment on agency proposed and interim rules during the public comment 
period. The APA's fairness provisions require that all members of the 
public, including Congress, be given an equal opportunity to comment. 
Late Congressional comments cannot be considered by the agency unless 
all other late public comments are equally considered. Agencies can 
ignore comments filed by Congress after the end of the public comment 
period, as the Department of Labor did after its proposed ``Baby UI'' 
rule. Therefore, since GAO cannot be given more time than other members 
of the public to comment, GAO should complete its review of agency 
regulatory proposals during public comment period.
  Under the CRA, Congress can disapprove an agency final rule after it 
is promulgated but before it is effective. Unfortunately, Congress has 
been unable to fully carry out its responsibility under the CRA because 
it has neither all of the information it needs to carefully evaluate 
agency regulatory proposals nor sufficient staff for this function. In 
fact, since the March 1996 enactment of the CRA, there has been no 
completed Congressional resolutions of disapproval.
  In recent years, various statutes (such as the Unfunded Mandates 
Reform Act of 1995 and the Small Business Regulatory Enforcement 
Fairness Act of 1996) and executive orders (such as President Reagan's 
1981 Executive Order 12291, ``Federal Regulation,'' and President 
Clinton's 1993 Executive Order 12866, ``Regulatory Planning and 
Review'') have mandated that Executive Branch agencies conduct 
extensive regulatory analyses, especially for economically significant 
rules having a $100 million-or-more effect on the economy or a 
significant impact on small businesses. Congress, however, does not 
have the analytical capability to independently and fairly evaluate 
these analyses.
  To assume oversight responsibility for Federal regulations, Congress 
needs to be armed with an independent evaluation. What is needed is an 
analysis of legislative history to see if there is a non-delegation 
problem, such as in the Food and Drug Administration's proposed rule to 
regulate tobacco products, which was struck down by the Supreme Court 
in FDA v. Brown & Williamson, or backdoor legislating, such as in the 
Department of Labor's ``Baby UI'' rule, which provides paid family 
leave to small business employees, even though Congress in the Family 
and Medical Leave Act said no to paid family leave and any coverage of 
small businesses.
  Sometimes the quickest (or only) way to find out that an agency has 
ignored Congressional intent or failed to consider less costly or non-
regulatory alternatives, is to examine non-agency (i.e., ``public'') 
data and analyses. It is for that reason that, under H.R. 4744, GAO 
would be required to consult the public's data

[[Page H7064]]

in the course of evaluating agency rules. Although H.R. 4924 does not 
require GAO to review public data, neither does it forbid or preclude 
GAO from doing so. I bring this up, because some hope that H.R. 4924 
implicitly contains a gag order, forbidding GAO to consult any analyses 
or data except those supplied by the agency to be reviewed. This 
reading of H.R. 4924 would defeat the whole purpose of the bill, which 
is to enable Congress to comment knowledgeably about agency rules from 
the standpoint of a truly independent evaluation of those rules.
  Instructed by GAO's independent evaluations, Congress will be better 
equipped to review final agency rules under the CRA. More importantly, 
Congress will be better equipped to submit timely and knowledgeable 
comments on proposed rules during the public comment period. I say 
this, notwithstanding the words ``where practicable,'' which some CORA 
foes hope will ensure that all GAO analyses of proposed rules are 
untimely and, therefore, worthless. I am confident that, despite the 
``where practicable'' language, GAO will want to please rather than 
annoy its customers and employers, and will not fail to help Members of 
Congress submit timely comments on regulatory proposals.
  Thus, even though a far cry from the original idea of an independent 
CORA agency, and although inferior to the Kelly-McIntosh bill reported 
by the Government Reform Committee, H.R. 4924 will increase the 
transparency of important regulatory decisions, promote effective 
Congressional oversight, and increase the accountability of Congress. 
The best government is a government accountable to the people. For 
America to have an accountable regulatory system, the people's elected 
representatives must participate in, and take responsibility for, the 
rules promulgated under the laws Congress passes. H.R. 4924 is a 
meaningful step towards Congress's meeting its regulatory oversight 
responsibility.

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