[House Report 111-150]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-150
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CONGRESSIONAL REVIEW ACT IMPROVEMENT ACT
_______
June 12, 2009.--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. 2247]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 2247) 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.................................................. 4
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 4
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. 2247, 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 directly to both the House and the Senate.
The bill instead requires that the House and Senate receive a
weekly list of all final rules from the Comptroller General of
the Government Accountability Office (GAO) and to have such
list printed in the Congressional Record with a statement of
referral for each rule. 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\1\ currently requires an
agency promulgating a rule\2\ to submit a report containing:
(1) a copy of the rule; (2) a concise general statement
describing the rule, including whether it is a major rule\3\;
and (3) the proposed effective date of the rule. This report
must be submitted to both Houses of Congress and to the GAO.\4\
Each House must then send a copy of the report to the chairman
and ranking minority member of each committee with jurisdiction
over the law under which the rule was issued.\5\
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\1\Pub. L. No. 104-121, subtitle E, 110 Stat. 857-74 (1996)
(codified as 5 U.S.C. Sec. Sec. 801-08).
\2\As used in the CRA, 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. 551 (2007). See also 5 U.S.C. Sec. 804(3) (2007) (defining
``rule'' by reference to Sec. 551, with certain exceptions).
\3\The CRA defines ``major rule'' 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. 5 U.S.C. Sec. 804(2).
Designation of a rule as a ``major rule'' triggers certain additional
CRA requirements. See 5 U.S.C. Sec. 801(a)(2)(A) (2007) (requiring GAO
to provide report on each major rule to committees of jurisdiction in
each House of Congress by the end of 15 calendar days after submission
or publication date of rule); 5 U.S.C. Sec. 801(a)(3) (2007)
(prescribing later effective date for major rules).
\4\5 U.S.C. Sec. 801(a)(1)(A) (2007).
\5\5 U.S.C. Sec. 801(a)(1)(C) (2007).
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For major rules, in addition to submitting a report
concerning the new rule, the promulgating agency must also
submit to GAO: (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.\8\ Such information must also be made available to each
House of Congress.\9\
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\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).
\9\Id.
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The CRA authorizes Congress to disapprove an agency rule to
which it objects. Congress can do so by enacting a joint
resolution of disapproval.\10\ Such a resolution must be
introduced within the specified review period of at least 60
days.\11\ 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
disapproved rule is deemed not to have had any effect at any
time.\12\ Additionally, the CRA prohibits an agency from
reissuing a rule that is substantially the same as a
disapproved rule.\13\ The CRA also prescribes special expedited
procedures for Senate consideration of a joint resolution of
disapproval, though it does not provide for similar procedures
in the House of Representatives.\14\
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\10\See 5 U.S.C. Sec. 802 (2007) (outlining congressional
disapproval procedure).
\11\5 U.S.C. Sec. 802(a) (2007).
\12\5 U.S.C. Sec. 801(f) (2007).
\13\5 U.S.C. Sec. 801(b)(2) (2007).
\14\5 U.S.C. Sec. 802(c) (2007).
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As of March 31, 2008, 47 joint resolutions of disapproval
had been introduced relating to 35 rules.\15\ None of the joint
resolutions introduced in the House have passed. Three of the
Senate-originated joint resolutions passed in the Senate.\16\
Of the latter, the House passed and the President signed only
one.\17\ In short, over the 13 years of the CRA's existence,
the CRA's disapproval mechanism has yielded only one
congressional disapproval.\18\
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\15\Morton Rosenberg, Congressional Review of Agency Rulemaking: An
Update and Assessment of the Congressional Review Act After A Decade,
Congressional Research Service Report for Congress, RL 30116, at 5 (May
8, 2008).
\16\Id.
\17\Pub. L. No. 107-5, 115 Stat. 7.
\18\Moreover, this disapproval was the result of a confluence of
unusual factors, including ``control of both Houses of Congress and the
presidency by the same party, the longstanding opposition by these
political actors, as well as by broad components of the industry to be
regulated, to the [rule at issue], and the willingness and
encouragement of a President seeking to undo a contentious, end-of-term
rule from a previous Administration.'' Morton Rosenberg, Congressional
Review of Agency Rulemaking: An Update and Assessment of the
Congressional Review Act After A Decade, Congressional Research Service
Report for Congress, RL 30116, at 12 (May 8, 2008).
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NEED FOR LEGISLATION
While congressional disapproval of an agency rule using the
CRA process has been exceedingly rare, the entities tasked with
implementing the CRA have borne significant administrative
burdens. As of March 31, 2008, the GAO submitted rules and
reports to Congress on 731 major rules and had cataloged 46,809
non-major rules.\19\ 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.\20\ In the 109th Congress, that number
rose to 10,742.\21\ As the Parliamentarian indicated:
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\19\Id. at 5.
\20\Statement of John V. Sullivan, Parliamentarian, U.S. House of
Representatives, 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).
\21\Id.
This flow of paper poses a significant increment of
workload for a range of individuals. 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.\22\
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\22\Id. at 3.
In addition, agencies must often resort to hand-delivering
the required materials by courier to the House and Senate, in
order to comply with the CRA and the standards regarding
communications transmitted to Congress.\23\ Materials are
frequently returned to the promulgating agency for failure to
comply with the CRA or these other congressional requirements,
delaying implementation of the rule.\24\
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\23\Id.
\24\Id.
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In the 110th Congress, H.R. 5593, a bill similar to H.R.
2247, was introduced by then-Subcommittee on Commercial and
Administrative Law Chair Linda Sanchez, with Committee Chairman
John Conyers, Jr., Committee Ranking Member Lamar Smith, and
then-Subcommittee Ranking Member Chris Cannon as original
cosponsors. It passed the House June 9, 2008; the Senate,
however, did not act on this bill before the 110th Congress
adjourned. H.R. 2247 is identical to H.R. 5593 as passed by the
House in the 110th Congress.
Hearings
The Committee held no hearings on H.R. 2247. However, the
Committee's Subcommittee on Commercial and Administrative Law
held an oversight hearing on the CRA on November 6, 2007,
during the 110th Congress. Testimony was received from 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. At that hearing, Mr. Sullivan
testified about the burdens of implementing the CRA imposed on
the Office of the Parliamentarian. Mr. Sullivan had previously
testified before the Subcommittee in the 109th Congress on the
same topic.\25\ Additionally, Mr. Sullivan's predecessor,
Charles W. Johnson, testified before the Subcommittee in the
105th Congress on the same topic.\26\
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\25\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).
\26\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 May 13, 2009, and again on May 20, 2009, the Committee
met in open session to consider the bill, H.R. 2247, and on May
20, 2009, ordered the bill 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. 2247.
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. 2247, 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 26, 2009.
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. 2247, 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,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 2247--Congressional Review Act Improvement Act.
H.R. 2247 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. 2247 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 new rules
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. 2247 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
information.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
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.
2247 would relieve unnecessary administrative burdens and
reduce duplicative paperwork by repealing the requirement that
agencies submit all rules and reports directly to both the
House and Senate.
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. 2247 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) of the bill repeals the requirement that
agencies submit all new rules and related reports directly to
both the House and Senate. It designates the GAO 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. Congress remains free to require, upon request,
that an agency make available the additional materials
concerning major rules.
Section 2(a)(2) amends subsection (e)(1) of the
Congressional Review Act to require the GAO 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 the rule is a major
rule. Section 2(a)(2) further 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 GAO 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 on request--
(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
* * * * * * *