[House Report 110-700]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-700

======================================================================



 
                CONGRESSIONAL REVIEW ACT IMPROVEMENT ACT

                                _______
                                

  June 5, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 5593]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 5593) to amend title 5, United States Code, to make 
technical amendments to certain provisions of title 5, United 
States Code, enacted by the Congressional Review Act, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Performance Goals and Objectives.................................     6
Constitutional Authority Statement...............................     6
Advisory on Earmarks.............................................     6
Section-by-Section Analysis......................................     6
Changes in Existing Law Made by the Bill, as Reported............     7

                          Purpose and Summary

    H.R. 5593, the ``Congressional Review Act Improvement 
Act,'' amends the Congressional Review Act (CRA) to reduce 
administrative burdens and duplicative paperwork by repealing 
the requirement that agencies submit copies of all final rules 
and reports thereon to both the House and Senate. The bill 
instead requires that the House and Senate receive a weekly 
list of all final rules published in the Federal Register from 
the Comptroller General, and to have such list printed in the 
Congressional Record with a statement of referral for each 
rule. Agencies would still be required to submit copies of 
final rules and reports thereon to the House and Senate that 
were not printed in the Federal Register. The bill does not 
affect the authority of Congress under the CRA to disapprove an 
agency rule.

                Background and Need for the Legislation

                               BACKGROUND

    The Congressional Review Act currently requires an agency 
promulgating a rule\1\ to submit a report to the House and 
Senate and to the Comptroller General at the Government 
Accountability Office (GAO) that includes: (1) a copy of the 
rule; (2) a concise general statement describing the rule, 
including whether it is a major rule;\2\ and (3) the proposed 
effective date of the rule.\3\ A rule may not take effect if 
the report is not submitted.\4\ Each House must send a copy of 
the report to the chairman and ranking minority member of each 
jurisdictional committee.\5\ In addition, the promulgating 
agency must submit to the Comptroller General: (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\6\ and the Unfunded Mandates Reform Act of 
1995;\7\ and (3) any other relevant information required under 
any other Act or Executive Order. Such information must also be 
made ``available'' to the House and Senate.\8\
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    \1\The term rule ``means the whole or part of an agency statement 
of general . . . applicability and future effect designed to implement, 
interpret, or prescribe law or policy.'' 5 U.S.C. Sec. 804(3) (2007).
    \2\A major rule is defined as a rule that will likely have an 
annual effect on the economy of $100 million or more, increase costs or 
prices for consumers, industries or state and local governments, or 
have significant adverse effects on the economy.
    \3\Pub. L. No. 104-121, subtitle E, 110 Stat. 857-74 (1996) 
(codified as 5 U.S.C. Sec. Sec. 801-08).
    \4\5 U.S.C. Sec. 801(a)(1)(A) (2007).
    \5\5 U.S.C. Sec. 801(a)(1)(C) (2007).
    \6\Pub. L. No. 96-353 (1980).
    \7\Pub. L. No. 104-4 (1995).
    \8\5 U.S.C. Sec. 801(a)(1)(B) (2007).
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    The CRA authorizes Congress, pursuant to a joint resolution 
of disapproval, to disapprove an agency rule that it determines 
to be too burdensome, excessive, inappropriate, duplicative, or 
otherwise objectionable. Such a resolution must be introduced 
within the specified review period, which is at least 60 
days.\9\ For a joint resolution of disapproval to become law, 
it must pass both Houses of Congress and be signed by the 
President. If a joint resolution is enacted into law, the rule 
is deemed not to have had any effect at any time.\10\ 
Additionally, the CRA prohibits an agency from reissuing a rule 
that is substantially the same as a disapproved rule.
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    \9\5 U.S.C. Sec. 801(a)(3)-(4) (2007).
    \10\5 U.S.C. Sec. 801(f) (2007).
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    The CRA prescribes special expedited procedures for 
consideration of the joint resolution in the Senate, but does 
not provide similar procedures in the House.\11\ After 
introduction of the joint resolution, it is referred by the 
Parliamentarian to committees of jurisdiction. In the Senate, 
if the committee has not reported it within 20 calendar days, 
the resolution can be discharged upon a petition supported by 
30 members, and placed on the calendar.\12\ In the House, there 
is no such petition provision, and the resolution would be 
treated like any bill.
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    \11\5 U.S.C. Sec. 802(c) (2007).
    \12\Id.
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    If the review period has expired, Congress may still seek 
to override an agency's rule through the enactment of 
legislation to achieve that objective. The legislation, 
however, would not have the various procedural enhancements 
provided for under the CRA. For example, the Senate fast track 
procedures, the automatic retroactivity of rule nullification, 
and the prohibition against agency reissuance would not apply.
    Since the CRA was signed into law in 1996, 47 joint 
resolutions of disapproval have been introduced relating to 35 
rules.\13\ None of the joint resolutions introduced in the 
House was ultimately passed by the House. Four of the Senate 
joint resolutions passed the Senate: (1) the nullification of 
the Occupational Safety & Health Administration's (OSHA) 
controversial ergonomics standards in March 2001;\14\ (2) the 
Federal Communication Commission's 2003 rule relating to 
broadcast media ownership;\15\ (3) a 2005 Department of 
Agriculture rule relating to the establishment of minimal risk 
zones for introduction of Mad Cow Disease;\16\ and (4) the 
Federal Communication Commission's 2008 rule relating to 
broadcast media ownership.\17\
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    \13\Morton Rosenberg, Congressional Review of Agency Rulemaking: An 
Update and Assessment of the Congressional Review Act After Ten Years, 
Congressional Research Service Report for Congress, RL 30116, at 6 (May 
8, 2008).
    \14\S. J. Res. 6, 107th Cong. (2001) (enacted).
    \15\S. J. Res. 17, 108th Cong. (2003).
    \16\S. J. Res. 4, 109th Cong. (2005).
    \17\S. J. Res. 28, 110th Cong. (2008).
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    Only one of those Senate-passed joint resolutions, the 
March 2001 nullification of the OSHA ergonomics standards, also 
passed the House and was signed into law by the President.\18\ 
In that instance, there was an unusual confluence of factors, 
including that: (1) the subject matter of the rule was 
``contentious;'' (2) the rule had been promulgated toward the 
end of an outgoing administration; (3) the current President, 
who was of the other political party, supported repealing the 
rule; and (4) the President and the majorities in both Houses 
of Congress were of the same political party.\19\ In future 
situations where those or similarly potent factors combine, it 
is likely that the new rule will come to the attention of 
Congress even without the elaborate notification process.
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    \18\Pub. L. No. 107-5 (2001).
    \19\Morton Rosenberg, Congressional Review of Agency Rulemaking: An 
Update and Assessment of the Congressional Review Act After Ten Years, 
Congressional Research Service Report for Congress, RL 30116, at 1 (May 
8, 2008).
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                        NEED FOR THE LEGISLATION

    While only one disapproval resolution has been signed into 
law throughout the history of the CRA, those charged with 
implementing this Act have faced significant administrative 
burdens. As of March 31, 2008, the Comptroller General has 
submitted rules and reports pursuant to section 801(a)(2)(A) of 
the CRA to Congress on 731 major rules, and has cataloged 
46,809 non-major rules.\20\ According to the House 
Parliamentarian, in the 103rd Congress--the last full Congress 
before the enactment of the CRA--the executive departments 
transmitted 4,135 communications to the Speaker of the House 
that warranted referral to committees.\21\ In the 109th 
Congress, that number had risen to 10,742.\22\ As the 
Parliamentarian testified last year at an oversight hearing on 
the CRA before the Subcommittee on Commercial and 
Administrative Law:
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    \20\Id. at 6.
    \21\Oversight of the Congressional Review Act: Hearing Before the 
Subcomm. on Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong. (2007) (statement of John V. Sullivan, 
Parliamentarian, U.S. House of Representatives).
    \22\Id.

        This flow of paper poses a significant increment of 
        workload. Although it is relatively easy to identify 
        the appropriate committees of referral for the vast 
        majority of these communications, the sheer volume of 
        them affects not only the parliamentarians who must 
        assess their subject matter but also the clerks who 
        must move the paper and account for dates of 
        transmittal.\23\
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    \23\Id.

    In addition, agencies must often resort to having copies of 
their rules hand-delivered by courier to the House and Senate 
in order to comply with the CRA and the standards regarding 
communications transmitted to Congress.\24\ Rules are 
frequently returned to the agency, delaying their 
implementation, for failing to comply with the CRA or these 
other congressional requirements.\25\
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    \24\Id.
    \25\Id. For example, agency submissions to the House of 
Representatives are often rejected because they lack a valid original 
signature on the transmittal letter, do not have a completed 
Congressional Review Act Form with an original signature, or are 
missing pertinent enclosures.
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                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
5593. The Committee's Subcommittee on Commercial and 
Administrative Law did hold 1 day of hearings, however, on the 
Congressional Review Act, on November 6, 2007. Testimony was 
received from the Honorable John V. Sullivan, Parliamentarian, 
House of Representatives; Morton Rosenberg, Specialist in 
American Public Law, Congressional Research Service; and 
Professor Sally Katzen, George Mason University School of Law. 
Mr. Sullivan also testified in the 109th Congress before the 
Subcommittee on Commercial and Administrative Law about the 
burdens of implementing the CRA on the Office of the 
Parliamentarian, which was the same topic of his November 6, 
2007 testimony.\26\ Mr. Sullivan's predecessor, Charles W. 
Johnson, testified in the 105th Congress before the 
Subcommittee on Commercial and Administrative Law on the same 
issue.\27\
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    \26\10th Anniversary of the Congressional Review Act: Hearing 
Before the Subcomm. on Commercial and Administrative Law of the H. 
Comm. on the Judiciary, 109th Cong. 38-42 (2006) (statement of John V. 
Sullivan, Parliamentarian, U.S. House of Representatives).
    \27\Congressional Review Act: Hearing Before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the Judiciary, 
105th Cong. 12-21 (1997) (statement of Charles W. Johnson III, 
Parliamentarian, U.S. House of Representatives).
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                        Committee Consideration

    On April 24, 2008, the Subcommittee on Commercial and 
Administrative Law met in open session and ordered the bill, 
H.R. 5593, favorably reported, without amendment, by voice 
vote, a quorum being present. On April 30, 2008, the Committee 
met in open session and ordered the bill, H.R. 5593, favorably 
reported without amendment, by voice vote, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 5593.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises 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.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 5593, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                       Washington, DC, May 5, 2008.
Hon. John Conyers, Jr., 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. 5593, the 
``Congressional Review Act Improvement Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860.
            Sincerely,
                                           Peter R. Orszag,
                                                  Director.

Enclosure

cc:
        Honorable Lamar S. Smith.
        Ranking Member
H.R. 5593--Congressional Review Act Improvement Act.
    H.R. 5593 would reduce reporting requirements for agencies 
that submit information to the legislative branch under the 
Congressional Review Act (CRA). CBO estimates that implementing 
H.R. 5593 would have no significant impact on the federal 
budget. Enacting the bill would not affect direct spending or 
revenues. The bill contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would not affect the budgets of State, local, and tribal 
governments.
    Under current law, all agencies that promulgate a new rule 
must submit a report to the House of Representatives, the 
Senate, and the Government Accountability Office (GAO) that 
contains a copy of the rule, a concise statement describing the 
rule, and its proposed effective date. H.R. 5593 would amend 
CRA to remove the requirement that agencies submit multiple 
copies of each new rule to the Congress. Instead, federal 
agencies would only submit rules and related documents to GAO, 
which would then provide the Congress with a weekly list.
    CBO estimates that reducing the reporting requirements 
under CRA would not have a significant impact on agencies' 
budgets because they would continue to prepare the same 
reports.
    The CBO staff contact for this estimate is Matthew 
Pickford, who can be reached at 226-2860. This estimate was 
approved by Theresea Gullo, Assistant Director for Budget 
Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5593 would relieve unnecessary administrative burdens and 
reduce duplicative paperwork by repealing the requirement that 
agencies submit rules and reports to both the House and Senate 
even when they are published in the Federal Register.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, Section 8 of the Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5593 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Congressional Review Act Improvement 
Act.''
    Sec. 2. Technical Amendments to the Congressional Review 
Act. Section 2(a)(1) repeals the requirement that agencies 
submit rules and reports that are published in the Federal 
Register to both the House and Senate. It designates the 
Comptroller General as the recipient of all of these materials. 
Section 2(a)(1) also repeals the requirement that the House and 
Senate provide copies of the rules and reports to the chairman 
and Ranking Member of each committee with responsibility for 
review of the rules.
    Section 2(a)(2) amends subsection (e)(1) of the 
Congressional Review Act to require the Comptroller General to 
submit to the House and Senate a weekly report listing all 
rules received since the last report was submitted. The report 
must include a notation indicating whether or not the rule is a 
major rule. Section 2(a)(2) requires the House and Senate to 
publish in the Congressional Record each report received from 
the Comptroller General and a statement of referral to the 
committee or committees with responsibility for review of that 
rule.
    Section 2(b) makes various conforming changes. Section 
2(b)(1) amends the provision in the CRA specifying when a major 
rule takes effect to specify that, assuming no resolution of 
disapproval is enacted, the rule takes effect on the date 
occurring 60 days after the date when the Comptroller General 
receives the report or the rule is published in the Federal 
Register, or on the date the rule would otherwise take effect, 
whichever is later. Section 2(b)(2) provides that a non-major 
rule takes effect after submission to the Comptroller General. 
Section 2(b)(4) specifies that the time when a joint resolution 
of disapproval can be introduced begins when the report is 
received by the Comptroller General.
    Section 2(c) provides that the amendments in this bill 
become effective 60 days after the date of enactment.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) 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 a report containing--
          (i) * * *

           *       *       *       *       *       *       *

  (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 [and make available to 
each House of Congress]--
          (i) * * *

           *       *       *       *       *       *       *

  [(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.]

           *       *       *       *       *       *       *

  (3) A major rule relating to a report submitted under 
paragraph (1) shall take effect on the latest of--
          (A) the later of the date occurring 60 days after the 
        date on which--
                  (i) the [Congress] Comptroller General 
                receives the report submitted under paragraph 
                (1); or

           *       *       *       *       *       *       *

  (4) Except for a major rule, a rule shall take effect as 
otherwise provided by law after submission to [Congress] the 
Comptroller General under paragraph (1).

           *       *       *       *       *       *       *

  (d)(1) * * *
  (2)(A) * * *
  (B) Nothing in this paragraph shall be construed to affect 
the requirement under subsection (a)(1) that a report shall be 
submitted to [Congress] the Comptroller General before a rule 
can take effect.

           *       *       *       *       *       *       *

  [(e)(1) For purposes of this subsection, section 802 shall 
also apply to any major rule promulgated between March 1, 1996, 
and the date of the enactment of this chapter.
  [(2) In applying section 802 for purposes of Congressional 
review, a rule described under paragraph (1) shall be treated 
as though--
          [(A) such rule were published in the Federal Register 
        on the date of enactment of this chapter; and
          [(B) a report on such rule were submitted to Congress 
        under subsection (a)(1) on such date.
  [(3) The effectiveness of a rule described under paragraph 
(1) shall be as otherwise provided by law, unless the rule is 
made of no force or effect under section 802.]
  (e)(1) The Comptroller General shall submit to each House of 
Congress a weekly report containing a list of each rule 
received by the Comptroller General pursuant to subsection (a) 
since the last such report was submitted. The report shall 
include a notation for each such rule indicating whether or not 
the rule is a major rule.
  (2) The Speaker of the House of Representatives shall cause 
to be published in the Congressional Record, in that portion of 
the Record relating to the proceedings of the House of 
Representatives, each report received from the Comptroller 
General under paragraph (1) since the last such publication in 
the House portion of the Record and, for each rule listed in 
such report, a statement of referral by the Speaker to the 
committee or committees of the House with responsibility for 
review of that rule.
  (3) There shall be published in the Congressional Record, in 
that portion of the Record relating to the proceedings of the 
Senate, each report received from the Comptroller General under 
paragraph (1) since the last such publication in the Senate 
portion of the Record and, for each rule listed in such report, 
a statement of the referral, if any, to the committee or 
committees of the Senate with responsibility for review of that 
rule.

           *       *       *       *       *       *       *


Sec. 802. Congressional disapproval procedure

  (a) For purposes of this section, the term ``joint 
resolution'' means only a joint resolution introduced in the 
period beginning on the date on which the report referred to in 
section 801(a)(1)(A) is received by [Congress] the Comptroller 
General and ending 60 days thereafter (excluding days either 
House of Congress is adjourned for more than 3 days during a 
session of Congress), the matter after the resolving clause of 
which is as follows: ``That Congress disapproves the rule 
submitted by the -- -- relating to -- --, and such rule shall 
have no force or effect.'' (The blank spaces being 
appropriately filled in).
  (b)(1) * * *
  (2) For purposes of this section, the term ``submission or 
publication date'' means the later of the date on which--
          (A) the [Congress] Comptroller General receives the 
        report submitted under section 801(a)(1); or

           *       *       *       *       *       *       *


                                  
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