[House Report 111-150]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-150

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



 
                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\
---------------------------------------------------------------------------
    \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

           *       *       *       *       *       *       *


                                 
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