[Congressional Record (Bound Edition), Volume 146 (2000), Part 1]
[Extensions of Remarks]
[Page 195]
[From the U.S. Government Publishing Office, www.gpo.gov]



  CONGRESSIONAL ACCOUNTABILITY FOR REGULATORY INFORMATION ACT OF 2000

                                 ______
                                 

                         HON. DAVID M. McINTOSH

                               of indiana

                    in the house of representatives

                       Thursday, January 27, 2000

  Mr. McINTOSH. Mr. Speaker, today, I rise to introduce the 
``Congressional Accountability for Regulatory Information Act of 
2000,'' a bill to aid Congress in analyzing Federal regulations and to 
ensure the public's understanding of the legal effect of agency 
guidance documents. To accomplish the former, the bill requires an 
analytic report to Congress by the General Accounting Office (GAO) on 
selected important agency proposed and final rules. To accomplish the 
latter, the bill requires the agencies to include a notice of 
nonbinding effect on each agency guidance document without any general 
applicability or future effect.
  On May 22, 1997, Representative Sue Kelly introduced H.R. 1704, the 
``Congressional Office of Regulatory Analysis Creation Act.'' On March 
11, 1998, the House Government Reform Committee's Subcommittee on 
National Economic Growth, Natural Resources, and Regulatory Affairs, 
which I chair, held a hearing on this bill. Rep. Kelly testified at the 
hearing that the analytic function will ``help Congress deal with an 
increasingly complex and burdensome regulatory system. It will give 
Congress the resources it needs to oversee the regulations that the 
Executive Branch issues on a regular basis and facilitate use of the 
Congressional Review Act.'' She also stated that it ``would provide a 
second opinion'' of the agency's analysis of the impact of a rule. On 
March 13, 1998, the House Committee on the Judiciary reported an 
amended version of the bill and issued a report (H. Rept. 105-441, Part 
I). On June 3, 1998, the House Government Reform Committee reported a 
further amended version of the bill and issued a report (H. Rept. 105-
441, Part II). There was no further action on the bill during 1998 and 
1999.
  The ``Congressional Accountability for Regulatory Information Act of 
2000'' is introduced to respond to some criticisms of the earlier bill, 
especially about the creation of a new Congressional agency. Instead, 
the ``Congressional Accountability for Regulatory Information Act of 
2000'' places the analytical function within GAO, which, since March 
1996, has been charged with certain related functions under the 
Congressional Review Act (CRA).
  Congress has delegated to the agencies the responsibility of writing 
regulations. However, regulations need to be carefully analyzed before 
they are issued. Under the CRA, Congress has the responsibility to 
review regulations and ensure that they achieve their goals in the most 
efficient and effective way. But, Congress has been unable to fully 
carry out its responsibility because it has neither all of the 
information it needs to carefully evaluate regulations nor sufficient 
staff for this function. Under my bill, GAO will be tasked with 
reviewing agency cost-benefit analyses and alternative approaches to 
the agencies' chosen regulatory alternatives.
  The ``Congressional Accountability for Regulatory Information Act of 
2000'' has a companion bill on the Senate side, S. 1198, the 
``Congressional Accountability for Regulatory Information Act of 
1999.'' This bill was introduced by Senators Shelby, Bond, and Lott on 
June 9, 1999 and then renamed and reported by the Senate Governmental 
Affairs Committee as the ``Truth in Regulating Act of 1999'' on 
December 7, 1999. The House and Senate bills are both intended to 
promote effective Congressional oversight of important regulatory 
decisions.
  In addition, the House version includes a provision to ensure the 
public's understanding of the effect of agency guidance documents (such 
as guidance, guidelines, manuals, and handbooks). It requires agencies 
to include a notice on the first page of each agency guidance document 
to make clear that, if the document has no general applicability or 
future effect, it is not legally binding. Under the CRA, ``rules'' 
subject to Congressional review are broadly defined to include not only 
regulatory actions subject to statutory notice and comment but also 
other agency actions that contain statements of general applicability 
and future effect designed to implement, interpret, or prescribe law or 
policy. Unfortunately, the Office of Management and Budget (OMB), 
despite a 1999 Treasury and General Government Appropriations Act 
directive to do so, has still not issued adequate guidance to the 
agencies on the requirement to submit to Congress any noncodified 
guidance document with any general applicability or future effect.
  As a consequence, on October 8, 1999, the Subcommittee on National 
Economic Growth, Natural Resources, and Regulatory Affairs began an 
investigation of the agencies' use of noncodified documents, including 
the specific explanations within each of these documents regarding 
their legal effect. I asked the General Counsels of the Departments of 
Labor (DOL) and Transportation (DOT) and the Environmental Protection 
Agency (EPA) to submit their noncodified documents issued since the 
March 1996 enactment of the CRA and to indicate which were submitted to 
Congress under the CRA. DOL and DOT asked that I narrow my request; as 
a consequence, I asked for only those documents issued by DOL's 
Occupational Safety and Health Administration (OSHA) and DOT's National 
Highway Traffic Safety Administration (NHTSA).
  Both DOL and DOT admitted that none of their 1,641 and 1,225 guidance 
documents respectively, had any legal effect and none was submitted to 
Congress for review under the CRA. Now, nearly four months later, EPA 
has still not completely produced its guidance documents. The 
investigation also revealed that the absence of any legal effect was 
not clear to the public. In fact, only 11 percent of OSHA'S guidance 
documents included any discussion of legal effect and only 7 percent 
had this discussion at the beginning of the document. On February 15, 
2000, I will be holding a hearing to examine DOL's use of guidance 
documents as a possible backdoor approach to regulating the public.
  Let me conclude by thanking Representative Sue Kelly of New York, 
Chairwoman of the Small Business Committee's Subcommittee on Regulatory 
Reform and Paperwork Reduction, for her leadership in this area in 1997 
and 1998.

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