[House Report 105-441]
[From the U.S. Government Publishing Office]



105th Congress                                            Rept. 105-441
 2d Session             HOUSE OF REPRESENTATIVES                 Part 1
_______________________________________________________________________


 
        CONGRESSIONAL OFFICE OF REGULATORY ANALYSIS CREATION ACT

                                _______


                 March 13, 1998.--Ordered to be printed

                                _______
                                

Mr. Gekas, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1704]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1704) to establish a Congressional Office of 
Regulatory Analysis, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           4
Background and Need for the Legislation....................           4
Hearings...................................................           7
Committee Consideration....................................           8
Vote of the Committee......................................           8
Committee Oversight Findings...............................           9
Committee on Government Reform and Oversight Findings......           9
New Budget Authority and Tax Expenditures..................          10
Congressional Budget Office Cost Estimate..................          10
Constitutional Authority Statement.........................          12
Section-by-Section Analysis and Discussion.................          12
Agency Views...............................................          15
Changes in Existing Law Made by the Bill, as Reported......          15
Dissenting Views...........................................          18

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Congressional Office of Regulatory 
Analysis Creation Act''.

SEC. 2. FINDINGS.

    The Congress finds that--
            (1) Federal regulations have had a positive impact in 
        protecting the environment and the health and safety of all 
        Americans; however, uncontrolled increases in the costs that 
        regulations place on the economy cannot be sustained;
            (2) the legislative branch has a responsibility to see that 
        the laws it passes are properly implemented by the executive 
        branch;
            (3) effective implementation of chapter 8 of title 5, 
        United States Code (relating to congressional review of agency 
        rulemaking) is essential to controlling the regulatory burden 
        that the Government places on the economy; and
            (4) in order for the legislative branch to fulfill its 
        responsibilities under chapter 8 of title 5, United States 
        Code, it must have accurate and reliable information on which 
        to base its decisions.

SEC. 3. ESTABLISHMENT OF OFFICE.

    (a) Establishment.--
            (1) In general.--There is established a Congressional 
        Office of Regulatory Analysis (hereinafter in this Act referred 
        to as the ``Office''). The Office shall be headed by a 
        Director.
            (2) Appointment.--The Director shall be appointed by the 
        Speaker of the House of Representatives and the majority leader 
        of the Senate without regard to political affiliation and 
        solely on the basis of the Director's ability to perform the 
        duties of the Office.
            (3) Term.--The term of office of the Director shall be 4 
        years, but no Director shall be permitted to serve more than 3 
        terms. Any individual appointed as Director to fill a vacancy 
        prior to the expiration of a term shall serve only for the 
        unexpired portion of that term. An individual serving as 
        Director at the expiration of that term may continue to serve 
        until the individual's successor is appointed.
            (4) Removal.--The Director may be removed by a concurrent 
        resolution of the Congress.
            (5) Compensation.--The Director shall receive compensation 
        at a per annum gross rate equal to the rate of basic pay, as in 
        effect from time to time, for level III of the Executive 
        Schedule in section 5314 of title 5, United States Code.
    (b) Personnel.--The Director shall appoint and fix the compensation 
of such personnel as may be necessary to carry out the duties and 
functions of the Office. All personnel of the Office shall be appointed 
without regard to political affiliation and solely on the basis of 
their fitness to perform their duties. The Director may prescribe the 
duties and responsibilities of the personnel of the Office, and 
delegate to them authority to perform any of the duties, powers, and 
functions imposed on the Office or on the Director. For purposes of pay 
(other than pay of the Director) and employment benefits, rights, and 
privileges, all personnel of the Office shall be treated as if they 
were employees of the House of Representatives.
    (c) Experts and Consultants.--In carrying out the duties and 
functions of the Office, the Director may procure the temporary (not to 
exceed one year) or intermittent services of experts or consultants or 
organizations thereof by contract as independent contractors, or, in 
the case of individual experts or consultants, by employment at rates 
of pay not in excess of the daily equivalent of the highest rate of 
basic pay under the General Schedule of section 5332 of title 5, United 
States Code.
    (d) Relationship to Executive Branch.--The Director is authorized 
to secure information, data, estimates, and statistics directly from 
the various departments, agencies, and establishments of the executive 
branch of Government, including the Office of Management and Budget, 
and the regulatory agencies and commissions of the Government. All such 
departments, agencies, establishments, and regulatory 
agencies and commissions shall promptly furnish the Director any 
available material which the Director determines to be necessary in the 
performance of the Director's duties and functions (other than material 
the disclosure of which would be a violation of law). The Director is 
also authorized, upon agreement with the head of any such department, 
agency, establishment, or regulatory agency or commission, to utilize 
its services, facilities, and personnel with or without reimbursement; 
and the head of each such department, agency, establishment, or 
regulatory agency or commission is authorized to provide the Office 
such services, facilities, and personnel.
    (e) Relationship to Other Agencies of Congress.--In carrying out 
the duties and functions of the Office, and for the purpose of 
coordinating the operations of the Office with those of other 
congressional agencies with a view to utilizing most effectively the 
information, services and capabilities of all such agencies in carrying 
out the various responsibilities assigned to each, the Director is 
authorized to obtain information, data, estimates, and statistics 
developed by the General Accounting Office, Congressional Budget 
Office, and the Library of Congress, and (upon agreement with them) to 
utilize their services, facilities, and personnel with or without 
reimbursement. The Comptroller General, the Director of the 
Congressional Budget Office, and the Librarian of Congress are 
authorized to provide the Office with the information, data, estimates, 
and statistics, and the services, facilities, and personnel, referred 
to in the preceding sentence.
    (f) Appropriations.--There are authorized to be appropriated to the 
Office to enable it to carry out its duties and functions for fiscal 
years 1998 through 2006 such sums as may be necessary but not to exceed 
the amount appropriated to carry out chapter 35 of title 44, United 
States Code.

SEC. 4. RESPONSIBILITIES.

    (a) Transfer of Functions Under Chapter 8 From GAO to Office.--
            (1) Director's new authority.--(A) Section 801 of title 5, 
        United States Code, is amended by striking ``Comptroller 
        General'' each place it occurs and inserting ``Director of the 
        Office''.
            (B) Section 801(a)(2)(B) of title 5, United States Code, is 
        amended by striking ``Comptroller General's'' and inserting 
        ``Director of the Office's''.
            (2) Definition.--Section 804 of title 5, United States 
        Code, is amended by adding at the end the following:
            ``(4) The term `Director of the Office' means the Director 
        of the Congressional Office of Regulatory Affairs established 
        by section 3 of the Congressional Office of Regulatory Analysis 
        Creation Act.''.
            (3) Major rules.--
                    (A) Regulatory impact analysis.--In addition to the 
                assessment of an agency's compliance with the 
                procedural steps for ``major'' rules described in 
                section 801(a)(2)(A) of title 5, United States Code, 
                the Office will also conduct its own regulatory impact 
                analysis of these ``major'' rules. This analysis shall 
                include--
                            (i) a description of the potential benefits 
                        of the rule, including any beneficial effects 
                        that cannot be quantified in monetary terms and 
                        the identification of those likely to receive 
                        the benefits;
                            (ii) a description of the potential costs 
                        of the rule, including any adverse effects that 
                        cannot be quantified in monetary terms and the 
                        identification of those likely to bear the 
                        costs;
                            (iii) a determination of the potential net 
                        benefits of the rule, including an evaluation 
                        of effects that cannot be quantified in 
                        monetary terms;
                            (iv) a description of alternative 
                        approaches that could achieve the same 
                        regulatory goal at a lower cost, together with 
                        an analysis of the potential benefit and costs 
                        and a brief explanation of the legal reasons 
                        why such alternatives, if proposed, could not 
                        be adopted; and
                            (v) a summary of how these results differ, 
                        if at all, from the results that the 
                        promulgating agency received when conducting 
                        similar analyses.
                    (B) Time for report to committees.--Section 
                801(a)(2)(A) of title 5, United States Code, is amended 
                by striking ``15'' and inserting ``45''.
            (4) Nonmajor rules.--The Office shall conduct a regulatory 
        impact analyses, as defined in paragraph (3)(A), of any 
        nonmajor rule, as defined in section 804(3) of title 5, United 
        States Code, when requested to do so by a committee of the 
        House of Representatives or the Senate, or individual 
        Representative or Senator.
            (5) Priorities.--
                    (A) Assignment.--To ensure that analysis of the 
                most significant regulations occurs, the Office shall 
                give first priority to, and is required to conduct 
                analyses of, all ``major'' rules, as defined in section 
                804(2) of title 5, United States Code. Secondary 
                priority shall be assigned to requests from committees 
                of the House of Representatives and the Senate. 
                Tertiary priority shall be assigned to requests from 
                individual Representatives and Senators.
                    (B) Discretion to director of office.--The Director 
                of the Office shall have the discretion to assign 
                priority among the secondary and tertiary requests.
    (b) Transfer of Certain Functions Under the Unfunded Mandates 
Reform Act of 1995 From CBO to Office.--
            (1) Cost of regulations.--Section 103 of the Unfunded 
        Mandates Reform Act of 1995 (2 U.S.C. 1511) is amended--
                    (A) in subsection (b), by striking ``the Director'' 
                and inserting ``the Director of the Congressional 
                Office of Regulatory Analysis''; and
                    (B) in subsection (c), by inserting after ``Budget 
                Office'' the following: ``or the Director of the 
                Congressional Office of Regulatory Analysis''.
            (2) Assistance to the congressional office of regulatory 
        analysis.--Section 206 of the Unfunded Mandates Reform Act of 
        1995 (2 U.S.C. 1536) is amended--
                    (A) by amending the section heading to read as 
                follows: ``SEC. 206. ASSISTANCE TO THE CONGRESSIONAL 
                OFFICE OF REGULATORY ANALYSIS.''; and
                    (B) in paragraph (2), by striking ``the Director of 
                the Congressional Budget Office'' and inserting ``the 
                Director of the Congressional Office of Regulatory 
                Analysis''.
    (c) Other Reports.--In addition to the regulatory impact analyses 
of major and nonmajor rules described in subsection (a) of this 
section, the Office shall also issue an annual report on an estimate of 
the total cost of Federal regulations on the United States economy.

SEC. 5. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect 180 
days after the date of enactment of this Act.

                          Purpose and Summary

    H.R. 1704, the ``Congressional Office of Regulatory 
Analysis Creation Act,'' would establish a Congressional Office 
of Regulatory Analysis (``CORA''). The bill would transfer the 
functions of the General Accounting Office (``GAO'') under the 
Congressional Review Act and certain functions of the 
Congressional Budget Office (``CBO'') under the Unfunded 
Mandates Reform Act to CORA. As a research arm of the Congress, 
CORA would receive copies of all rules issued by federal 
agencies; do an independent analysis of major rules and (as 
resources permit) rules for which an analysis is requested by 
committees and individual Senators and Members; and annually 
estimate the total cost of regulations to the U.S. economy.

                Background and Need for the Legislation

    H.R. 1704 was introduced by Representative Sue Kelly (NY) 
with Small Business Committee Chairman Jim Talent (MO) as an 
original cosponsor on May 22, 1997. It was referred to the 
Judiciary Committee and the Government Reform and Oversight 
Committee. The bill currently has 43 cosponsors. Senator 
Richard C. Shelby (AL) introduced a companion bill in the 
Senate (S. 1675) on February 25, 1998.
    The bill was a principal matter considered at the 
Subcommittee on Commercial and Administrative Law's September 
25, 1997 hearing on the role of Congress in administrative 
rulemaking. Likewise, H.R. 1704 was the focus of a hearing 
entitled ``Congressional Review Act and its Impact on Small 
Business,'' held July 10, 1997 by the Small Business 
Committee's Subcommittee on Regulatory Reform and Paperwork 
Reduction.
    On February 25, 1998, the Subcommittee on Commercial and 
Administrative Law approved an amendment in the nature of a 
substitute offered by Mr. Gekas and reported the amended bill 
favorably to the Judiciary Committee. The amendment made one 
change, capping the appropriation for CORA at the level 
appropriated for the Office of Information and Regulatory 
Affairs (``OIRA'') in the Office of Management and Budget.
    The Constitution places all legislative powers with the 
Congress.\1\ While Congress may not delegate its essential 
legislative functions,\2\ it routinely transfers authority to 
establish rules and regulations to the President and Executive 
Branch agencies. Consistent with Congress' broad delegations to 
the Executive Branch, numerous Supreme Court decisions have 
inferred a broad and encompassing power in the Congress to 
engage in oversight to enable it to carry out its legislative 
function.\3\
---------------------------------------------------------------------------
    \1\ U.S. Const. art. 1, Sec. 1 (``All legislative Powers herein 
granted shall be vested in a Congress of the United States, which shall 
consist of a Senate and a House of Representatives.''); see also U.S. 
Const. art. I, Sec. 8 (enumerating powers of Congress).
    \2\ Panama Refining v. Ryan, 293 U.S. 388, 430 (1935); Schechter 
Poultry v. United States, 295 U.S. 495, 542 (1935).
    \3\ See generally Congressional Research Service, Investigative 
Oversight: An Introduction to the Law, Practice and Procedure of 
Congressional Inquiry 2 (Apr. 7, 1995); see also Congressional Research 
Service, Congressional Oversight Manual 5 (Feb. 1995).
---------------------------------------------------------------------------
    Although Congress has given broad power to the Executive 
Branch, Congress has sought both to retain power over the 
regulatory process and to make that process more open and 
participatory. To keep the regulatory process open, for 
example, Congress passed the original Administrative Procedure 
Act \4\ in 1946 with purposes that include ``keep[ing] the 
public currently informed of [agencies'] organization, 
procedure and rules'' and ``provid[ing] for public 
participation in the rulemaking process.'' \5\ Likewise, the 
Freedom of Information Act \6\ requires all agencies to (1) 
publish certain items of information in the Federal Register, 
(2) to make available for public inspection and copying certain 
other items of information, and (3) to make certain information 
available to any member of the public upon specific request for 
that information. Another example, the Regulatory Flexibility 
Act,\7\ requires agencies to consider the special needs of 
small entities and make their analyses of the impacts of 
proposed rules available for public comment.
---------------------------------------------------------------------------
    \4\ Administrative Procedure Act, Pub. L. No. 404, 60 Stat. 237 
(1946) (codified as revised in scattered sections of 5 U.S.C.).
    \5\ Tom C. Clark, U.S. Dep't of Justice, Attorney General's Manual 
on the APA 9 (1947), reprinted in Charles Pou, Jr., Admin. Conf. of the 
U.S., Federal Administrative Procedure Sourcebook: Statutes and Related 
Materials 75 (2d ed. 1992).
    \6\ 5 U.S.C. Sec. 552 (1994).
    \7\ 5 U.S.C. Sec. Sec. 601-12 (1994).
---------------------------------------------------------------------------
    To retain direct control of the regulatory process, 
Congress used the legislative veto for most of this century. 
The legislative veto allowed one or both Houses of Congress to 
negate an agency action by passing a simple resolution that did 
not require the President's signature. When overturned by the 
Supreme Court's decision in INS v. Chadha, \8\ there were as 
many as 295 legislative veto-type procedures written into 
federal law. \9\
---------------------------------------------------------------------------
    \8\ 462 U.S. 919 (1983).
    \9\ See id. at 944 (citing James G. Abourezk, The Congressional 
Veto: A Contemporary Response to Executive Encroachment on Legislative 
Prerogatives, 52 Ind. L. Rev. 323, 324 (1977)).
---------------------------------------------------------------------------
    In recent years, Congress has become increasingly cognizant 
of regulation and its obligation to oversee the administrative 
process. This is not without reason. The Office of Management 
and Budget estimated the total cost of regulation in 1997 to be 
$279 billion dollars. \10\ In calendar year 1997 alone, 
agencies issued 3,997 new final rules and regulations. \11\ Of 
these, 59 were designated ``major'' rules, meaning generally 
that each one had an annual effect on the economy of $100 
million dollars or more. \12\ The cumulative effect on the 
economy of just these 59 rules was at least $6 billion dollars. 
Given the huge economic effects--not to mention non-quantified 
effects--of regulation, Congress' obligation to oversee 
regulation is not a trivial responsibility.
---------------------------------------------------------------------------
    \10\ OIRA, OMB, Report to Congress on the Costs and Benefits of 
Federal Regulations (Sept. 30, 1997).
    \11\ Since March 1996, the Congressional Review Act has required 
that new final rules and regulations be reported to GAO and Congress. 
See infra note 13 and accompanying text.
    \12\ Major rules are those having or likely to have: (A) an annual 
effect on the economy of $100,000,000 or more; (B) a major increase in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; or (C) significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets. 
5 U.S.C. Sec. 804(2).
---------------------------------------------------------------------------
    Several major efforts at reforming the regulatory process 
have been introduced and seriously considered in both Houses of 
Congress. For example, in the 104th Congress, the House passed 
H.R. 9 and S. 343 was debated extensively on the Senate floor. 
In this Congress, S. 981 was introduced and reported out of the 
Senate Governmental Affairs Committee by Senator Thompson (TN). 
The latter bill would require cost-benefit analyses and risk 
assessment for major rules, a process for the review of 
existing rules, and executive oversight of the rulemaking 
process.
    In parallel to efforts at reforming the regulatory process, 
Congress passed the Congressional Review Act (``CRA'') as part 
of the Small Business Regulatory Enforcement Fairness Act \13\ 
on March 29, 1996 to enhance Congress' authority over 
regulation. The CRA created a resolution of disapproval 
mechanism to allow Congress to strike down new regulations of 
which it disapproves. Unlike the legislative veto in Chadha, a 
CRA resolution must pass both Houses of Congress, so it 
satisfies the bicameralism and presentment requirements of the 
Constitution. Any member may introduce a resolution 
disapproving any agency regulation, and such resolutions may 
receive expedited consideration. Because a CRA resolution must 
be approved by the President (whose administration promulgated 
the rule), however, a resolution may require a veto-proof 
majority to become law. At present, only a handful of CRA 
resolutions have been introduced and none has passed either 
House of Congress. The threat of CRA disapproval resolutions, 
however, may cause agencies to be more aware of statutory 
authority and congressional intent. CORA would give Congress 
more of the information it needs to file credible resolutions 
of disapproval, and the existence of CORA alone would signal 
Congress' intent to seriously oversee regulation.
---------------------------------------------------------------------------
    \13\ Pub. L. No. 104-121 (codified at 5 U.S.C. Sec. Sec. 801-808).
---------------------------------------------------------------------------
    In addition to establishing the resolution of disapproval, 
the CRA requires agencies to submit rules to each House of 
Congress before they can take effect. It delays the 
effectiveness of major rules for 60 days \14\ and requires the 
GAO to report within 15 days on the submitting agency's 
compliance with the procedural requirements that pertain to 
such rules.
---------------------------------------------------------------------------
    \14\ This delay provision is the only part of the CRA that can 
appropriately be deemed ``regulatory reform'' because it actually does 
affect the regulatory process.
---------------------------------------------------------------------------
    Despite the CRA, Congress is at an inherent disadvantage in 
its responsibility to oversee regulation. Federal employees 
creating and enforcing regulations will number 126,000 in 
fiscal year 1998 and administering the federal regulatory 
apparatus will cost $17.2 billion dollars. \15\ The Legislative 
Branch may have, at most, a handful of employees systematically 
monitoring regulation \16\ and Congress will invest, by 
comparison to the Executive Branch, an infinitesimal amount in 
organized oversight of regulation. The Congressional Office of 
Regulatory Analysis would assist the Congress with oversight of 
regulation and the regulatory process. CORA would develop and 
apply uniform standards for analyzing regulation, an invaluable 
assistance to committees individually, and Congress as a whole, 
in overseeing the activities of the Executive Branch.
---------------------------------------------------------------------------
    \15\ See generally Christopher Douglas et al., Regulatory Changes 
and Trends: An Analysis of the 1998 Budget of the U.S. Government 
(Center for the Study of American Business, Aug. 1997)
    \16\ The Congressional Review Act requires GAO to receive reports 
on new, final rules and report to Congress on the procedural soundness 
of major rules. Disregarding piecemeal committee oversight and GAO's 
studies-on-request, this is the only systematic Legislative-Branch 
regulatory oversight known to the Committee.
---------------------------------------------------------------------------
    In addition to providing Congress with an institutional 
information source, the Committee believes that CORA would have 
at least one additional salutary effect on agency practices and 
behavior. Knowing that analyses of rules are subject to 
independent review, agencies would have added incentive to 
produce analyses that are more current, detailed, and 
consistent with scientific and economic standards. The role of 
CORA vis a vis agencies would be akin to that of CBO vis a vis 
OMB in budgetary matters. The presence of an informed second 
opinion, whether antagonistic or not, requires the renderer of 
the first opinion to produce information of higher quality. 
CORA's mere existence will cause agencies to do better work.
    CORA would not impede regulation. Existing information 
collection and analysis would be transferred from GAO and CBO 
without modification, and the analysis done by CORA would 
inform Congress without affecting the regulatory process.

                                Hearings

    The Committee's Subcommittee on Commercial and 
Administrative Law held one day of hearings on H.R. 1704 and a 
related bill, H.R. 1036. Testimony was received from the 
following witnesses: Representative Sue Kelly (NY); 
Representative J.D. Hayworth (AZ); Senator Sam Brownback (KS); 
Craig Brightup, Director of Government Relations, National 
Roofing Contractors Association; Professor Marci Hamilton, 
Benjamin N. Cardozo School of Law, Yeshiva University; and Todd 
Robins, Staff Attorney, U.S. Public Interest Research Group.

                        Committee Consideration

    On February 25, 1998, the Subcommittee on Commercial and 
Administrative Law met in open session and ordered favorably 
reported the bill H.R. 1704 in the form of an amendment in the 
nature of a substitute, by a recorded vote of 5 to 3, a quorum 
being present. On March 3 and 4, 1998, the Committee met in 
open session and ordered favorably reported the bill H.R. 1704 
in the form of an amendment in the nature of a substitute by a 
recorded vote of 16 to 15, a quorum being present, as follows:

        YEAS                          NAYS

Mr. Hyde                            Mr. Sensenbrenner
Mr. McCollum                        Mr. Coble
Mr. Gekas                           Mr. Conyers
Mr. Smith (TX)                      Mr. Frank
Mr. Gallegly                        Mr. Berman
Mr. Canady                          Mr. Boucher
Mr. Inglis                          Mr. Nadler
Mr. Goodlatte                       Mr. Scott
Mr. Buyer                           Mr. Watt
Mr. Bryant                          Ms. Lofgren
Mr. Chabot                          Ms. Jackson Lee
Mr. Jenkins                         Mr. Meehan
Mr. Hutchinson                      Mr. Delahunt
Mr. Cannon                          Mr. Wexler
Mr. Rogan                           Mr. Rothman
Mr. Graham
    *Mr. Pease, who was absent on official business announced 
that had he been present he would have voted aye.

                         Vote of the Committee

    There were recorded votes on two amendments during the 
Committee's consideration of H.R. 1704, as follows:

                             Rollcall No.1

    1. An amendment offered by Mr. Meehan to the amendment in 
the nature of a substitute reported by the Subcommittee 
regarding the appointment and removal of the Director of CORA. 
Defeated 12-18.

        YEAS                          NAYS

Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Sensenbrenner
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Smith (TX)
Ms. Lofgren                         Mr. Gallegly
Ms. Jackson Lee                     Mr. Canady
Mr. Meehan                          Mr. Inglis
Mr. Delahunt                        Mr. Goodlatte
Mr. Wexler                          Mr. Buyer
Mr. Rothman                         Mr. Bryant
                                    Mr. Chabot
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Cannon
                                    Mr. Rogan
                                    Mr. Graham
    *Mr. Pease, who was absent on official business announced 
that had he been present he would have voted no.

                            Rollcall No. 2.

    2. The amendment in the nature of a substitute reported by 
the Subcommittee.

        AYES                          NAYS

Mr. Hyde                            Mr. Conyers
Mr. Sensenbrenner                   Mr. Frank
Mr. McCollum                        Mr. Berman
Mr. Gekas                           Mr. Boucher
Mr. Coble                           Mr. Nadler
Mr. Smith (TX)                      Mr. Scott
Mr. Gallegly                        Mr. Watt
Mr. Canady                          Ms. Lofgren
Mr. Inglis                          Ms. Jackson Lee
Mr. Goodlatte                       Mr. Meehan
Mr. Buyer                           Mr. Delahunt
Mr. Bryant                          Mr. Wexler
Mr. Chabot                          Mr. Rothman
Mr. Jenkins
Mr. Hutchinson
Mr. Cannon
Mr. Rogan
Mr. Graham
    *Mr. Pease, who was absent on official business announced 
that had he been present he would have voted aye.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1704, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 13, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1704, the 
Congressional Office of Regulatory Analysis Creation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mary 
Maginniss, who can be reached at 226-2860.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

    cc: Hon. John Conyers, Jr.
         Ranking Minority Member.

H.R. 1704--Congressional Office of Regulatory Analysis Creation Act

            Summary

    H.R. 1704 would create a Congressional Office of Regulatory 
Analysis (CORA), to provide the Congress an independent 
analysis of the costs and benefits of rules that agencies issue 
as part of the regulatory process. The bill also would require 
CORA to report annually on the total cost of federal 
regulations to the U.S. economy. It would transfer to CORA 
certain functions now assigned to the General Accounting Office 
(GAO) and the Congressional Budget Office (CBO).
    The cost of operating CORA would depend on the way in which 
it would be expected to carry out its responsibilities. If it 
is to perform rigorous, independent, and comprehensive 
regulatory analyses, we expect that its costs would be at least 
$30 million a year, However, H.R. 1704 would authorize annual 
funding for CORA at a level ``not to exceed the amount 
appropriated'' for the Office of Information and Regulatory 
Affairs (OIRA) at the Office of Management and Budget (OMB)--
about $5 million a year. For that sum, analyses would have to 
consist largely of reviews of agency studies, rather than 
original analyses.
    Enacting H.R. 1704 would not affect direct spending or 
receipts; therefore, pay-as-you-go procedures would not apply. 
H.R. 1704 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(UMRA) and would not affect the budgets of state, local, or 
tribal governments.
            Estimated Cost to the Federal Government
    H.R. 1704 would establish a new Congressional office, CORA, 
to conduct its own regulatory analysis of all major rules, and, 
upon request of a Member of Congress or a committee, any 
nonmajor rule. The Speaker of the House and the Majority Leader 
of the Senate would appoint the director, who could serve up to 
three terms of four years each. The director would be 
authorized to hire staff, experts, and consultants, and to 
secure data and support from executive and Confessional 
agencies. The bill would transfer to the director certain 
functions of the CBO, which, under the Unfunded Mandates Act 
(Public Law 104-4), is required, if requested, to compare its 
cost estimates for regulations with those transmitted by OMB. 
It also would transfer to CORA the responsibility of the 
General Accounting Office to review procedures that federal 
agencies follow in preparing regulations as required by the 
Congressional Review Act (Public Law 104-21).
    Unlike GAO's limited review of procedures, section 4 of the 
bill would require CORA to conduct its own analysis of major 
regulations issued by federal agencies and to prepare an 
estimate each year of the costs ant benefits of complying win 
federal regulations. Descriptions of alternative approaches, 
along win Heir costs and benefits, would also be included in 
the analysis. In a CBO study of 85 regulatory impact analyses, 
Regulatory Impact Analysis: Costs at Selected Agencies and 
Implications for the Legislative Process (March 1997), CBO 
determined that the cost and time to conduct an independent 
regulatory impact analysis (RIA) varied greatly depending upon 
the scope and complexity of the rule being analyzed, the nature 
of the information required to perform the RIA, and the degree 
of political consensus surrounding the rule. the costs of the 
RIAs examined were as low as $14,000 and as high as $6 million, 
and the time required to complete the RIAs ranged from six 
weeks to ore than 12 years. Agencies propose about 500 to 600 
rules each year, and about 60 qualify as major rulings. Because 
the CBO study did not attempt to obtain a representative sample 
of RIAs, we cannot derive the cost of a ``typical'' or 
``average'' RIA. Nonetheless, based on the CBO study and 
information from GAP and OMB, and assuming that roughly 60 
major rules are issued a year, we concluded that CORA would 
require funding of at least $30 million annually to conduct 
comprehensive, independent RIAs. the total cost could increase 
if agencies complete more than 60 rules annually or if a few 
very expensive analyses pushed the total costs higher.
    H.R. 1704 would authorize the appropriation of such sums as 
necessary through 2006 to carry out the duties of the new 
office, but would limit the annual funding to amounts 
appropriated to OIRA. This level of resources suggests that 
rather than conducting an independent analysis for each major 
ruling, CORA would instead draw upon data provided by the 
agencies and would review the methodology and comment on the 
costs and benefits of the rule. OMB has allocated $5.1 million 
from its 1998 appropriation to fund OIRA, and the president is 
requesting $5.2 million for 1999 to pay expenses and salaries 
for 47 employees of the office. (the funding level also covers 
OIRA's responsibilities under the Paperwork Reduction Act of 
1995 to review proposals of agencies to collect data.) CBO 
estimates that implementing H.R. 1704 but limiting its funding 
to levels consistent with OIRA would cost $25 million over the 
1999-2003 period (if funding for CORA is maintained at the 1998 
level provided to OIRA) or $28 million over the five-year 
period (if funding is adjusted annually for inflation). Public 
Law 104-13 authorizes $8 million annually in each of the fiscal 
years 1999 through 2001 for OIRA.
    We estimate that GAO would save about $500,000 begging in 
1999 if its regulatory review functions were shifted to CORA. 
CBO currently catalogues RIAs but has received no requests to 
date to prepare a cost estimate for an RIA; as a result, we 
would expect savings in CBO spending would be negligible if 
H.R. 1705 is enacted.

            Pay-As-You-Go Considerations:

    None.

            Intergovernmental and Private-Sector Impact
    H.R. 1704 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would not affect the budgets of 
state,local, or tribal governments.

            Estimate Prepared By:

    Mary Maginniss (226-2860).

            Estimate Approved By:

    Robert A. Sunshine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 1 and Article I, section 
8 of the Constitution.

                      Section-by-Section Analysis

    Sec. 1 Short Title. This section entitles the bill the 
``Congressional Office of Regulatory Analysis Creation Act.''
    Sec. 2 Findings. This section lays out Congress' findings 
relating to the bill.
    Sec. 3 Establishment of Office. This section establishes 
the Congressional Office of Regulatory Analysis (``CORA''). The 
Director of CORA is appointed by the Speaker of the House and 
the Majority Leader of the Senate without regard to political 
affiliation and solely on the basis of merit. The Director may 
be removed by a concurrent resolution of Congress. The 
procedure for both appointment and removal of the Director is 
modeled directly on the procedure used for the Congressional 
Budget Office. The Director may serve a maximum of three four-
year terms.
    The Director is given power to appoint, fix compensation, 
and assign duties to personnel without regard to political 
affiliation and solely on the basis of merit. Employees of CORA 
are treated as employees of the House of Representatives. The 
Director is also empowered to hire experts and consultants on a 
temporary basis.
    The Director is given power to secure information, data, 
estimates, and statistics from all departments, agencies, and 
establishments of the Executive Branch, including the Office of 
Management and Budget and all regulatory agencies and 
commissions. Executive Branch agencies must promptly furnish 
information to CORA. This is intended to give CORA the maximum 
access to information that CORA deems appropriate and useful to 
its mission.
    The lone exception to CORA's power to access information is 
where disclosure would violate the law. This refers to 
instances in which disclosure is specifically barred by statute 
because, for example only, disclosure would threaten national 
security or reveal private entities' personal or proprietary 
information. This exception does not include information 
regarded by an agency as tentative, internal, or in ``draft'' 
form.
    Upon agreement, the Director may utilize the services, 
facilities, and personnel of Executive Branch departments, 
agencies, and establishments. Executive Branch entities may 
provide such services, facilities, and personnel.
    The Director may obtain information developed by the 
General Accounting Office, the Congressional Budget Office, and 
the Library of Congress, and, upon agreement, use the services 
of these entities. The bill authorizes the General Accounting 
Office, the Congressional Budget Office, and the Library of 
Congress to provide such information and services, facilities, 
and personnel.
    Appropriations are authorized for CORA, but they are capped 
at the amount appropriated for the Office of Information and 
Regulatory Affairs (``OIRA'') in the Office of Management and 
Budget. OIRA is authorized at $8 million dollars until 2001, 
and its fiscal 1998 appropriation is $5 million dollars. \17\ 
The appropriation for CORA could only increase beyond this 
amount if Congress considered it worthwhile to bestow equal 
dollars on the Executive Branch's regulatory clearinghouse. 
This reflects the Committee's intention not to create an 
expansive bureaucratic agency in the Legislative Branch. While 
decisions about the source of funds are the province of others, 
the Committee believes it appropriate for some level of funding 
to be transferred from GAO and CBO to CORA consistent with the 
movement of responsibilities.
---------------------------------------------------------------------------
    \17\ 44 U.S.C. Sec. 3520; Treasury and General Government 
Appropriations Act, 1998, Pub. L. No. 105-61.
---------------------------------------------------------------------------
    Within this limited appropriation, CORA would be able to 
carry out its mandated functions. OIRA reviewed thousands of 
rules per year during 1982-1993. \18\ CORA would do a more 
thorough analysis than OIRA, but only on major rules (on 
average, less than 100 per year) and those that are reviewed by 
request. As discussed in more detail below, CORA would begin to 
analyze major rules well before they were finalized, and it 
would review (and usually adopt) agencies' statistics and 
methodologies, in addition to using its independent expertise 
and judgement.
---------------------------------------------------------------------------
    \18\ OIRA, OMB, More Benefits, Fewer Burdens: Creating a Regulatory 
System that Works for the American People (A Report to the President on 
the Third Anniversary of Executive Order 12866) A-1 (Dec. 1996). The 
proportion of rules returned to the agencies for reconsideration by 
OIRA has also dropped. Between 1981 and September 30, 1993, OIRA 
returned an average of about 1.3 percent of the rules it reviewed. 
Between October 1, 1993 and June 30, 1996, OIRA returned 0.2 percent (5 
out of 2,366) of the rules it reviewed. General Accounting Office, 
Regulatory Reform: Implementation of the Regulatory Review Executive 
Order 10-11 (Sept. 25, 1996) (GAO/T-GGD-96-185).
---------------------------------------------------------------------------
    Sec. 4 Responsibilities. This section transfers the 
responsibilities of the General Accounting Office under the 
Congressional Review Act (``CRA'') to CORA. This includes 
receiving copies of new agency rules and reporting to Congress 
on agencies' compliance with procedural requirements pertaining 
to promulgation of major rules. The time for reporting on 
agencies' compliance is extended from 15 to 45 days.
    In addition, CORA will conduct its own analyses of rules 
deemed ``major'' by the Office of Management and Budget under 
the CRA. These analyses would determine and/or describe: 
potential benefits, including those not quantifiable in 
monetary terms, and likely beneficiaries; potential costs, 
including those not quantifiable in monetary terms, and likely 
bearers of those costs; potential net benefits of the rule, 
including an evaluation of effects not quantifiable in monetary 
terms; a description of alternative approaches for achieving 
the same regulatory goal at a lower cost, together with an 
analysis of the potential benefits and costs of such 
alternatives, and a brief explanation of legal reasons why such 
alternatives, if proposed, could not be adopted; and a summary 
of how these results differ from any analyses put out by the 
promulgating agency. CORA would conduct analyses of non-major 
rules by request of committees and members of the House and 
Senate, giving priority, after major rules, to requests by 
committees, then to individual members. The Director is 
explicitly given discretion to assign priority among requests 
for analyses.
    As discussed earlier, CORA would have broad access to 
information from Executive Branch agencies. The Committee 
anticipates that CORA would use its access to information in at 
least two ways to perform timely and relatively inexpensive 
analyses:
    First, CORA would begin to analyze major rules well in 
advance of the time that the rule became final. By specifically 
requesting that agencies notify CORA of pending major rules or 
by monitoring the Federal Register (among myriad options), CORA 
could thoroughly inform itself of the pendency of major rules. 
It would begin its review of these rules early enough to 
complete and report its analysis to Congress in a timely 
fashion.
    Second, CORA would review and should usually have good 
reason to adopt the statistics and methodologies used by the 
agency, in addition to bringing its own expertise and judgment 
to bear. Some debates and press accounts dealing with the bill 
have assumed that the analysis performed by CORA would be 
equivalent to other kinds of regulatory analyses. Reference has 
been made to a Congressional Budget Office study documenting 
the costs of regulatory impact analyses done by agencies under 
Executive Order 12866 and the Unfunded Mandates Reform Act. 
\19\ The term ``regulatory impact analysis'' used in the bill 
is not a term of art. The scope of analysis is defined in the 
bill, which does not incorporate the requirements of any other 
statute or Executive Order. As CORA would review and use 
information obtained from the agencies, neither the costs nor 
the time-frames discussed in the CBO study are apposite to 
CORA.
---------------------------------------------------------------------------
    \19\ Congressional Budget Office, Regulatory Impact Analysis: Costs 
at Selected Agencies and Implications for the Legislative Process (Mar. 
1997).
---------------------------------------------------------------------------
    H.R. 1704 transfers certain responsibilities of the 
Congressional Budget Office under the Unfunded Mandates Reform 
Act of 1995 to CORA. On request, CORA would compare agency-
prepared estimates of the costs of regulations to implement a 
law and CBO estimates prepared when the law was enacted. As any 
office must do in a regime of limited resources, the Director 
would accommodate as much of what is requested of CORA 
consistent with its funding levels. CORA would also receive 
compiled statements on significant regulatory actions from OMB.
    In addition, CORA would issue an annual report estimating 
the total cost of federal regulations to the U.S. economy. Like 
its analyses of major regulations, CORA would not start this 
report yearly ``from scratch,'' but, rather, would make use of 
Executive Branch information, including the reports issued by 
the Office of Management and Budget under the Stevens 
Amendments, \20\ which, for two years, have required a report 
on the cumulative costs and benefits of regulation. Recognizing 
how costly and time-consuming such an endeavor can be, the 
Committee expects that CORA would develop and refine its 
information and methodologies over many years.
---------------------------------------------------------------------------
    \20\ See supra note 10; Treasury and General Government 
Appropriations Act, Pub. L. No. 105-61, Sec. 625; Treasury, Postal 
Services, and General Government Appropriations Act, Pub. L. No. 104-
208, Sec. 645.
---------------------------------------------------------------------------
    Sec. 5 Effective Date. This section makes the Act effective 
180 days from enactment.

                              Agency Views

    No agency views were received by the Committee.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE

          * * * * * * *

                     PART I--THE AGENCIES GENERALLY

          * * * * * * *

          CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

          * * * * * * *

Sec. 801. Congressional review

    (a)(1)(A) Before a rule can take effect, the Federal agency 
promulgating such rule shall submit to each House of the 
Congress and to the [Comptroller General] Director of the 
Office a report containing--
            (i) a copy of the rule;
            (ii) a concise general statement relating to the 
        rule, including whether it is a major rule; and
            (iii) the proposed effective date of the rule.
    (B) On the date of the submission of the report under 
subparagraph (A), the Federal agency promulgating the rule 
shall submit to the [Comptroller General] Director of the 
Office and make available to each House of Congress--
            (i) a complete copy of the cost-benefit analysis of 
        the rule, if any;
            (ii) the agency's actions relevant to sections 603, 
        604, 605, 607, and 609;
            (iii) the agency's actions relevant to sections 
        202, 203, 204, and 205 of the Unfunded Mandates Reform 
        Act of 1995; and
            (iv) any other relevant information or requirements 
        under any other Act and any relevant Executive orders.
    (C) Upon receipt of a report submitted under subparagraph 
(A), each House shall provide copies of the report to the 
chairman and ranking member of each standing committee with 
jurisdiction under the rules of the House of Representatives or 
the Senate to report a bill to amend the provision of law under 
which the rule is issued.
    (2)(A) The [Comptroller General] Director of the Office 
shall provide a report on each major rule to the committees of 
jurisdiction in each House of the Congress by the end of [15] 
45 calendar days after the submission or publication date as 
provided in section 802(b)(2). The report of the [Comptroller 
General] Director of the Office shall include an assessment of 
the agency's compliance with procedural steps required by 
paragraph (1)(B).
    (B) Federal agencies shall cooperate with the [Comptroller 
General] Director of the Office by providing information 
relevant to the [Comptroller General's] Director of the 
Office's report under subparagraph (A).
          * * * * * * *

Sec. 804. Definitions

    For purposes of this chapter--
            (1) * * *
          * * * * * * *
            (4) The term ``Director of the Office'' means the 
        Director of the Congressional Office of Regulatory 
        Affairs established by section 3 of the Congressional 
        Office of Regulatory Analysis Creation Act.
          * * * * * * *
                              ----------                              


                  UNFUNDED MANDATES REFORM ACT OF 1995

          * * * * * * *

             TITLE I--LEGISLATIVE ACCOUNTABILITY AND REFORM

          * * * * * * *

SEC. 103. COST OF REGULATIONS.

    (a) * * *
    (b) Statement of Cost.--At the request of a committee 
chairman or ranking minority member, [the Director] the 
Director of the Congressional Office of Regulatory Analysis 
shall, to the extent practicable, prepare a comparison 
between--
            (1) an estimate by the relevant agency, prepared 
        under section 202 of this Act, of the costs of 
        regulations implementing an Act containing a Federal 
        mandate; and
            (2) the cost estimate prepared by the Congressional 
        Budget Office for such Act when it was enacted by the 
        Congress.
    (c) Cooperation of Office of Management and Budget.--At the 
request of the Director of the Congressional Budget Office or 
the Director of the Congressional Office of Regulatory 
Analysis, the Director of the Office of Management and Budget 
shall provide data and cost estimates for regulations 
implementing an Act containing a Federal mandate covered by 
part B of title IV of the Congressional Budget and Impoundment 
Control Act of 1974 (as added by section 101 of this Act).
          * * * * * * *

             TITLE II--REGULATORY ACCOUNTABILITY AND REFORM

          * * * * * * *

[SEC. 206. ASSISTANCE TO THE CONGRESSIONAL BUDGET OFFICE.]

SEC. 206. ASSISTANCE TO THE CONGRESSIONAL OFFICE OF REGULATORY 
                    ANALYSIS.

    The Director of the Office of Management and Budget shall--
            (1) collect from agencies the statements prepared 
        under section 202; and
            (2) periodically forward copies of such statements 
        to [the Director of the Congressional Budget Office] 
        the Director of the Congressional Office of Regulatory 
        Analysis on a reasonably timely basis after 
        promulgation of the general notice of proposed 
        rulemaking or of the final rule for which the statement 
        was prepared.
          * * * * * * *

                     Dissenting Views to H.R. 1704

    H.R. 1704 sets up a costly new bureaucracy to complete 
analyses already performed by agencies in the Executive Branch 
and the Legislative Branch. Because there is no justification 
for this repetitive new bureaucracy, we oppose its creation.
    New regulations are already subject to extensive and costly 
review by all three branches of government. Before an Executive 
Branch agency addresses the requirements of Congress with 
regard to new regulations, the requirements of Executive Order 
12866 \1\ must be satisfied. Among other things, the Executive 
Order requires that:
---------------------------------------------------------------------------
    \1\ Exec. Order No. 12,866, 3 C.F.R. Sec. 638 (1993).
---------------------------------------------------------------------------
          agencies are to regulate only upon reasoned 
        determination that benefits justify costs;
          all significant regulations are to be submitted to 
        OMB, but only economically significant (i.e. those 
        having an annual effect on the economy of $100 million 
        or more) regulations are to undergo OMB review;
          agencies are to choose regulatory objectives to 
        address significant problems or compelling public 
        needs; they are to choose regulatory approaches that 
        maximize net benefits and minimize burdens for society 
        and that are designed in the most cost-effective 
        manner;
          agencies are to include in their annual regulatory 
        plans comments regarding risk analysis;
          agencies are periodically to submit to OMB a plan to 
        review existing regulations;
          a newly created Regulatory Working Group is to serve 
        as a forum to assist agencies in identifying and 
        analyzing important regulatory issues: and
          the Office of Information and Regulatory Affairs 
        (``OIRA'') is to disclose communications with agencies 
        and private citizens regarding rules submitted for 
        review.
Additionally, each agency head is required to designate a 
Regulatory Policy Officer who is to be involved in each stage 
of the regulatory process to further the aims of the Executive 
Order.
    Further review is afforded by the federal courts, which, as 
a coequal branch of government, have exercised effective 
oversight. Congress, as another coequal branch of government, 
enacts the laws, passes annual appropriations, and holds 
oversight hearings. We also impose tremendous demands on the 
Executive Branch agencies under the Congressional Review Act 
(``CRA'') \2\ to provide reams of paper on new regulations. We 
have the General Accounting Office (``GAO'') to review programs 
and provide other technical analysis on agency action. In 
addition, we have the Congressional Budget Office (``CBO'') to 
do detailed economic analysis.
---------------------------------------------------------------------------
    \2\ Pub.L. 104-121, Title II, Sec. 251, Mar. 29, 1996, 110 Stat. 
868, 5 U.S.C. Sec. Sec. 801-808 (1996).
---------------------------------------------------------------------------
    The Congressional Review Act requires all agencies 
promulgating a covered rule to submit a report to Congress and 
to the Comptroller General (``CG'') containing a copy of the 
rule, a concise general statement describing the rule 
(including whether it is deemed to be a major rule), and the 
proposed effective date of the rule.\3\ In addition, the 
promulgating agency must submit to the CG (1) a complete copy 
of any cost-benefit analysis; (2) a description of the agency's 
actions pursuant to the requirements of the Regulatory 
Flexibility Act and the Unfunded Mandates Reform Act of 1995; 
and (3) any other relevant information required under any other 
act or executive order. Such information must also be made 
available to each House.\4\
---------------------------------------------------------------------------
    \3\ Id. Sec. 801(a)(1)(A).
    \4\ Id. Sec. 801(a)(1)(B).
---------------------------------------------------------------------------
    The majority, not satisfied with the elaborate, 
painstaking, and extremely expensive reviews that are being 
performed already, has proposed a new agency, a so-called 
Congressional Office of Regulatory Analysis (``CORA'') that 
would repeat those reviews. While the majority attempts to 
downplay the costs associated with the reviews this new agency 
would perform, in fact, the Congressional Budget Office has 
already examined the question and determined that such 
analyses, as they are already performed by executive branch 
agencies, cost an average of $570,000 per major regulation.\5\
---------------------------------------------------------------------------
    \5\ Congressional Budget Office, Regulatory Impact Analysis: Costs 
at Selected Agencies and Implications for the Legislative Process, viii 
(March 1997).
---------------------------------------------------------------------------

                      Summary of CORA's Functions

    Under the proposed legislation, the Directorship of CORA is 
supposedly nonpartisan, although the reality is that it is to 
be filled by the Speaker of the House and the Majority Leader 
of the Senate.\6\ The Director would have the authority to 
appoint staff and hire experts and consultants. The Director 
would have the authority to direct all executive branch 
agencies to ``promptly furnish the Director any available 
material which the Director determines to be necessary in the 
performance of the Director's duties and functions (other than 
material the disclosure of which would be a violation of 
law).'' \7\ The bill authorizes, for fiscal years 1998 through 
2006, such sums as may be necessary, but not to exceed the 
amount appropriated to carry out chapter 35 of title 44, United 
States Code (i.e., the operation of OIRA), or approximately $5 
million per year.\8\
---------------------------------------------------------------------------
    \6\ H.R. 1704, 105th Cong. Sec. 3(a)(2)(1998).
    \7\ Id. Sec. 3(d).
    \8\ Id. Sec. 3(f).
---------------------------------------------------------------------------
    For major rules, CORA would be required to assess an 
agency's compliance with the procedural steps set out in the 
CRA. CORA would also perform its own ``regulatory impact 
analysis'' which would include an analysis of the costs, 
benefits, net benefits, and alternative approaches that could 
achieve the same regulatory goal at a lower cost, together with 
an analysis of the potential benefit and costs and a brief 
explanation of the legal reasons why such alternatives, if 
proposed, could not be adopted, and a summary of how CORA's 
findings differ, if at all, from the results that the 
promulgating agency received. The bill increases from 15 days 
to 45 days the time CORA (previously GAO) had to review the 
agencies' major rule submissions. \9\ For non-major rules, CORA 
must perform a similar analysis at the request of a committee, 
but it has the authority to prioritize such requests.\10\
---------------------------------------------------------------------------
    \9\ Id. Sec. 4(a)(3).
    \10\ Id. Sec. 4(a)(4-5).
---------------------------------------------------------------------------
    CORA is also assigned the task of comparing an agency's 
estimate of the cost of implementing a regulation with CBO's 
original estimate for the Act when it was enacted by Congress. 
CORA would share with CBO the right to request information from 
OMB.\11\
---------------------------------------------------------------------------
    \11\ Id. Sec. 4(b).
---------------------------------------------------------------------------
I. CORA is unnecessary.
    Congress does not use its current authority to exercise 
control over the regulatory process. Since enactment of CRA, 
only six Joint Resolutions of Disapproval have been introduced 
and only one voted on. In that one instance, S.J. Res. 60 was 
brought up on September 17, 1996, and was, by unanimous 
consent, deemed not passed. \12\ The purpose of the exercise 
was to allow a rule of the Health Care Financing Agency which 
increased payments to doctors and hospitals to take effect 
immediately rather than waiting the required 60 days. 
Accordingly, one may wonder whether there is real interest in 
Congress in reviewing every rule in this manner, or whether a 
more precise tool should be devised to address a more specific 
problem.
---------------------------------------------------------------------------
    \12\ S.J. Res. 60, 104th Cong., 142 Cong. Rec. S10723 (daily ed. 
Sep. 17, 1996) .
---------------------------------------------------------------------------
    A witness called by the Majority, Prof. Marci Hamilton, 
observed at the Subcommittee's hearing on this legislation, 
``Let me just add, I think CRA is a bit of a problem, and the 
reason is because it doesn t solve the failure to take 
responsibility. It creates a mini-bureaucracy in the 
legislative branch. I am not sure a new small bureaucracy is 
going to solve a huge bureaucracy problem.'' \13\
---------------------------------------------------------------------------
    \13\ Hearing on the Role of Congress in Monitoring Administrative 
Rulemaking Before the Subcomm. on Commercial and Administrative Law of 
the House Comm. on the Judiciary, 105th Cong. (1997) (testimony of 
Prof. Marci Hamilton) (hereinafter, ``Subcommittee Hearing'').
---------------------------------------------------------------------------
    If the Congress objects to any regulation, it already has 
ample authority to change it under current law. Yet, instead of 
exercising the responsibility to take these politically 
difficult votes, the majority instead proposes a costly, 
duplicative, and unnecessary bureaucracy.
II. CORA would be a very costly project.
    A recent CBO analysis found, ``[b]ased on a sample of 85 
Regulatory Impact Analyses (RIAs) that the average cost [of 
reviewing a major regulation] was about $570,000, . . . . The 
median cost (the value below which half of the costs per RIA 
are found) was $270,000.'' \14\ Taking an average CBO estimate 
of $570,000 per RIA, and its estimated 2.2 staff FTEs per RIA, 
and considering that Congress has received 93 major rules 
Congress since last March, the new Office would need a budget 
of over $35 million and a staff of more than 135 analysts.
---------------------------------------------------------------------------
    \14\ Congressional Budget Office, supra note 5, at viii.
---------------------------------------------------------------------------
    If the purpose of CORA is simply to do a paper review to 
ensure that agencies have followed the required procedural 
steps (which is what GAO now does under CRA) then the cost 
might not be great--although the possible benefit of CORA then 
becomes minimal. If, however, CORA is expected to do its own 
independent analyses, the cost to be anticipated would be much 
greater.
III. The real reason for CORA appears to be dissatisfaction with the 
        substance of agency rule making.
    It can be argued that the real driving force behind this 
legislation is the majority's dissatisfaction with the policies 
contained in new regulations rather than the procedures used to 
formulate and implement them. In addition to the Subcommittee's 
hearing on CORA, at which OSHA and EPA regulations were 
criticized by a representative of the roofing industry, \15\ 
the Subcommittee has held two hearings at which the 
Environmental Protection Agency's National Ambient Air Quality 
Standards were criticized by industry witnesses. \16\
---------------------------------------------------------------------------
    \15\ Subcommittee Hearing, supra note 13, at 59 (Testimony of Craig 
Brightup).
    \16\ See Oversight Hearing Regarding the Congressional Review Act 
Before the Subcomm. on Commercial and Administrative Law of the House 
Comm. on the Judiciary, 105th Cong. (1997); Oversight Hearing on the 
EPA's Rulemaking on the National Ambient Air Quality Standards for 
Particulate Matter and Ozone Before the Subcomm. on Commercial and 
Administrative Law of the House Comm. on the Judiciary, 105th Cong. 
(1997).
---------------------------------------------------------------------------
    Indeed, some in the Majority have sought to oust their own 
in-house analysts when their independent reviews failed to 
support the Majority's policy preferences. In a recent well 
publicized incident, an effort was mounted to oust 
Congressional Budget Office Director June E. O Neill by members 
of the Majority who felt some of their proposals should be 
scored differently. \17\ Commenting on this situation, The Hill 
editorialized, Perhaps it is naive to argue that the CBO should 
be above the political fray. But Congress and its leaders risk 
damaging their own credibility when they bring pressure on the 
CBO to produce budget projections that support their political 
ideology.'' \18\ Presumably, the majority believes if it asks a 
question enough times, it will eventually get the answer it 
wants.
---------------------------------------------------------------------------
    \17\ A.B. Stoddard, GOP Ready to Dump CBO Chief; June O Neill at 
Odds with Leaders on Economic Forecasts and Policies, The Hill, Jan. 7, 
1998, at 1.
    \18\ Done in by Dynamic Scoring, The Hill, Jan. 14, 1998, at 14.
---------------------------------------------------------------------------
IV. CORA lacks public accountability and could lead to the defeat of 
        critical public protections.
    Federal agencies are bound by the Administrative Procedure 
Act (``APA''), which sets forth requirements such as notice and 
opportunities for public comment to ensure openness and to 
build a record on which agency action can be judicially 
reviewed. CORA, however, would not be bound by the APA. 
Consequently, important decisions at CORA regarding the costs 
and benefits of an agency rule could be made without public 
input. CORA therefore is more likely to be used as a tool to 
advance a political agenda than as a source of objective 
analysis. \19\
---------------------------------------------------------------------------
    \19\ See Subcommittee Hearing, supra note 13 (testimony of Todd 
Robins, attorney for the U.S. Public Interest Research Group).
---------------------------------------------------------------------------

                               Conclusion

    Not content to complain, obstruct, and otherwise try to 
hinder federal agencies as they work to enforce laws protecting 
the environment, public health, and worker safety, the majority 
now sees fit to place yet another bureaucratic obstacle in the 
path of agency action. Instead of complaining about the rules 
and setting up another redundant and costly bureaucracy, 
Members of Congress have a constitutional obligation to have 
the courage of their convictions to exercise the power they 
already have. As a first step, members could do something that 
has not been done since the enactment of the Congressional 
Review Act: take a vote on one of the regulations, take some 
responsibility for their beliefs in the light of day. That is 
what the taxpayers pay us to do.
    If any Committee has any questions about regulations, or if 
a Committee wants to check the work an agency has done, the GAO 
and the CBO are available. Despite occasional complaining from 
the majority about their results, they are independent and they 
work for us. They can provide the analysis Congress needs to 
make the decisions that we are charged with making under the 
Constitution.
    We oppose the creation of a costly, unneeded bureaucracy, 
and dissent from the adoption of H.R. 1704.
                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Steven R. Rothman.

                                    
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