[Senate Report 115-169]
[From the U.S. Government Publishing Office]
Calendar No. 239
115th Congress } { Report
SENATE
1st Session } { 115-169
_______________________________________________________________________
REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2017
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
WITH MINORITY VIEWS
to accompany
S. 21
TO AMEND CHAPTER 8 OF TITLE 5, UNITED STATES CODE, TO
PROVIDE THAT MAJOR RULES OF THE EXECUTIVE BRANCH
SHALL HAVE NO FORCE OR EFFECT UNLESS A JOINT RESOLUTION OF APPROVAL IS
ENACTED INTO LAW
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
October 16, 2017.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2017
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana KAMALA D. HARRIS, California
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Satya P. Thallam, Chief Economist
Margaret E. Daum, Minority Staff Director
Stacia M. Cardille, Minority Chief Counsel
Charles A. Moskowitz, Minority Senior Legislative Counsel
Katherine C. Sybenga, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 239
115th Congress } { Report
SENATE
1st Session } { 115-169
======================================================================
REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2017
_______
October 16, 2017.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 21]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 21) to amend
chapter 8 of title 5, United States Code, to provide that major
rules of the executive branch shall have no force or effect
unless a joint resolution of approval is enacted into law,
having considered the same, reports favorably thereon with
amendments and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and the Need for Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................5
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Minority Views..................................................10
VIII.Changes in Existing Law Made by the Bill, as Reported...........13
I. Purpose and Summary
The Regulations from the Executive in Need of Scrutiny Act
of 2017 (REINS Act) revises the Congressional Review Act of
1996 (CRA) to increase accountability and transparency in the
Federal regulatory process.\1\ The CRA, which originated from a
desire to instill more active congressional control over a
rapidly growing body of Federal regulation, created an
expedited process for Congress to review and disapprove any
rule after it is issued by a Federal agency.\2\ The REINS Act
would amend the CRA by adding a mandatory congressional
approval procedure for major agency rules before they can go
into effect.\3\ By requiring prior congressional approval for
major rules, regulations will be more carefully crafted and the
regulatory process will be more accountable to the American
people.
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\1\See Contract with America Advancement Act of 1996, Pub. L. No.
104-121, 110 Stat. 847 (1996) (codified at 5 U.S.C. Sec. Sec. 801-808);
see also Regulations from the Executive in Need of Scrutiny Act of
2017, S. 21, 115th Cong. (2017) (CRA was included as part of the
Contract with America Advancement Act of 1996).
\2\H.R. Rep. No. 114-214, pt. 1, at 7 (2015).
\3\S. 21, 115th Cong. (2017).
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II. Background and the Need for Legislation
Under the CRA, a major rule cannot take effect for at least
60 days after a report on the rule is submitted to both Houses
of Congress and the rule itself is published in the Federal
Register (whichever occurs later).\4\ However, unless Congress
acts to formally disapprove the rule, it automatically goes
into effect.\5\ The REINS Act would reverse this process for
major rules, preventing implementation of major rules that do
not receive explicit approval by Congress. A major rule is one
that the Office of Information and Regulatory Affairs (OIRA)
determines will have a likely annual effect of $100 million or
more on the economy, cause a major increase in costs or prices,
or have significant international anti-competitive effects.\6\
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\4\See 5 U.S.C. Sec. Sec. 801-808 (2012).
\5\Id.
\6\See 5 U.S.C. Sec. 804(2) (2012).
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The costs and burdens associated with Federal regulatory
activity have increased significantly over the last 40
years.\7\ However, despite an increasing regulatory burden,\8\
the legislative structure has not meaningfully changed to
commensurately increase accountability. Over the course of the
twentieth century, there has been an escalation of
congressional delegation of regulatory authority to Federal
agencies.\9\ By delegating broad regulatory authority to
Federal agencies, Congress has lost legislative control and
political accountability over the exercise of that delegated
regulatory authority.\10\
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\7\See Jonathan H. Adler, Placing ``Reins'' On Regulations:
Assessing the Proposed REINS Act, 16 N.Y.U. J. Legis. & Pub. Pol'y 1,
2-36 (2013).
\8\Aggregate measurement of federal regulatory scope and cost is
difficult, though there have been attempts at using a structural model
to estimate costs, as well as machine-learning methods to ``read'' the
extensive Code of Federal Regulations to count the number of
regulations. See Bentley Coffey et al., The Cumulative Cost of
Regulations (Mercatus Ctr., Working Paper, April 2016), https://
www.mercatus.org/system/files/Coffey-Cumulative-Cost-Regs-v3.pdf (``Had
regulation been held constant at levels observed in 1980, our model
predicts that the economy would have been 25 percent larger by 2012 . .
. or about $13,000 per capita); see also Omar Al-Ubaydli & Patrick A.
McLaughlin, RegData: A Numerical Database on Industry-specific
Regulations for All United States Industries and Federal Regulations,
1997-2012, 11 Reg. & Governance 1, 109-123 (2017).
\9\Adler, supra note 7.
\10\Id.
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The purpose of the CRA was to ``redress the balance [of
power], reclaiming for Congress some of its policymaking
authority.''\11\ The sponsors observed that Congress was
increasingly delegating its legislative functions, effectively
``abdicat[ing] its constitutional role.''\12\ Previous
Congresses have contemplated other means of disapproving of
Executive actions vis-a-vis delegated powers, employing various
means to assert authority over Federal agencies and restore
legislative control.\13\ These means have included everything
from ordinary congressional oversight activities to the use of
the unicameral legislative veto, which goes back to 1932.\14\
On the latter tool, ``the Supreme Court struck down any
procedure where executive action could be overturned by less
than the full process required under the Constitution to make
laws.''\15\ The CRA outlines a process similar to a legislative
veto, but which requires participation of both Houses of
Congress and the President.
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\11\142 Cong. Rec. 96, 6922, 6926 (1996) (Joint Explanatory
Statement of House and Senate sponsors for CRA).
\12\Id.
\13\See H.R. Rep. No. 114-214 at 8.
\14\See Act of June 30, 1932, Pub. L. No. 72-212, ch. 314,
Sec. 407, 47 Stat. 382, 414 (repealed 1966); see also James Abourezk,
The Congressional Veto: A Contemporary Response to Executive
Encroachment on Legislative Prerogatives, 52 Ind. L. J. 323, 324 n.5
(1977) (cited in I.N.S. v. Chadha, 103 S. Ct. at 2793 (White, J.,
dissenting)); Laurence H. Tribe, The Legislative Veto Decision: A Law
By Any Other Name?, 21 Harv. J. on Legis. 1, 3-4, 28 (1984).
\15\142 Cong. Rec. 96, 6922, 6926 (1996); see also I.N.S. v.
Chadha, 462 U.S. 919 (1983).
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Despite its conceptual intentions, the CRA has not had much
success reigning in the pace of regulations promulgated by
Federal agencies.\16\ Since the enactment of the CRA, agencies
have issued more than 85,000 new final Federal regulations,\17\
over 1,500 of which are major rules.\18\ However only a small
fraction have received some form of Congressional action via a
Congressional resolution--to date only 20 have been passed by
both chambers and sent to the President; of those, only 15 have
been signed into law.\19\
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\16\See H.R. Rep. No. 114-214 at 8; see also Adler, supra note 7,
at 21.
\17\See U.S. Fed. Reg., https://www.federalregister.gov/ (last
visited Sept. 13, 2017) (search Mar. 30, 1996 through Sept. 13, 2017).
\18\See U.S. Gov't Accountability Off., http://www.gao.gov/legal/
congressional-review-act/overview (last visited Sept. 13, 2017) (search
Mar. 30, 1996 through Sept. 13, 2017).
\19\See generally S.J. Res. 8, 114th Cong. (2015-2016); S.J. Res.
22, 114th Cong. (2015-2016); S.J. Res. 23, 114th Cong. (2015-2016);
S.J. Res. 24 114th Cong. (2015-2016); H.J. Res. 88, 114th Cong. (2015-
2016) (the five vetoed resolutions); see also S.J. Res. 6, 107th Cong.
(2001) (enacted as Pub. L. No. 107-5); H.J. Res. 41, 115th Cong. (2017)
(enacted as Pub. L. No. 155-4); H.J. Res. 38, 115th Cong. (2017)
(enacted as Pub. L. No. 155-5); H.J. Res. 40, 115th Cong. (2017)
(enacted as Pub. L. No. 115-8); H.J. Res. 37, 115th Cong. (2017)
(enacted as Pub. L. No. 155-11); H.J. Res. 44, 155th Cong. (2017)
(enacted as Pub. L. No. 155-12); H.J. Res. 57, 115th Cong. (2017)
(enacted as Pub. L. No. 115-13); H.J. Res. 58, 115th Cong. (2017)
(enacted as Pub. L. No. 115-14); H.J. Res. 42, 115th Cong. (2017)
(enacted as Pub. L. No. 115-17); H.J. Res. 69, 115th Cong. (2017)
(enacted as Pub. L. No. 115-20); H.J. Res. 83, 115th Cong. (2017)
(enacted as Pub. L. No. 115-21); S.J. Res. 34, 115th Cong. (2017)
(enacted as Pub. L. No. 115-22); H.J. Res. 43, 115th Cong. (2017)
(enacted as Pub. L. No. 115-23); H.J. Res. 67, 115th Cong. (2017)
(enacted as Pub. L. No. 115-24); H.J. Res. 66, 115th Cong. (2017)
(enacted as Pub. L. No. 115-35) (the fifteen resolutions overturning
rules and signed into law).
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One limitation of the CRA is that it forces Congress to
take its own initiative to overturn any regulations of which it
disapproves.\20\ Additionally, the CRA essentially requires a
super-majority in Congress to overturn any regulations because
a sitting President is likely to veto any joint congressional
resolutions meant to disapprove of regulations promulgated by
his own administration.\21\
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\20\Adler, supra note 7, at 19.
\21\Id.
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There is a need for further reform of the regulatory
process. Under the CRA, unless Congress disapproves of a rule,
the rule goes into effect without any congressional action.\22\
Therefore, as a matter of course, even rules to which many in
Congress (perhaps even a majority) may object go unchallenged,
and individual members can hold at arm's length any undesirable
outcomes--avoiding ``a degree of visible responsibility.''\23\
Legal scholar Laurence Tribe described that ``through
rulemaking . . . exercises of delegated authority change legal
rights and privileges no less than do full-fledged laws.''\24\
This means that changes to and creation of new Federal
regulations carry the full force and effect of law, and can
proceed without the active participation of the Congress, which
may have only vaguely authorized regulation in a particular
area months, years, or decades prior.
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\22\See 5 U.S.C. Sec. Sec. 801-808 (2012).
\23\Stephen Breyer, The Legislative Veto After Chadha, 72 Geo. L.J.
785, 793-96 (1984).
\24\Tribe, supra note 14, at 9.
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The REINS Act revises the CRA by inverting this process for
major rules by preventing them from going into effect without
Congress' explicit approval. Under the REINS Act, any new major
rule would require Congress to pass within 70 session or
legislative days of the rule being submitted to Congress, and
the President to sign, a joint resolution approving the new
major rule before it could take effect. Accordingly, the REINS
Act, like the CRA, would require approval by both Houses of
Congress and presentment to the President. Then-Judge Stephen
Breyer and constitutional law professor Laurence Tribe have
opined that a congressional approval mechanism for
regulations--similar to that outlined in the REINS Act--would
be constitutional.\25\
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\25\Breyer, supra note 23, at 28; see also H.R. Rep. No. 114-214 at
11.
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The REINS Act provides for a few exceptions to its process.
First, a major rule may take effect for a 90-day period without
congressional approval if the President determines it is
necessary under certain circumstances. Second, any rules
affecting budget authority, outlays, or receipts are ``assumed
to be effective unless [they are] not approved in accordance''
with this bill.
Finally, the REINS Act ensures Congress has the ability to
efficiently review major rules before they take effect by
providing an expedited process. This process includes a
prohibition on amendments to congressional joint resolutions of
approval, a limited period of up to 15 session days for
committees to discharge such resolutions, limited time allowed
for floor debate, and a deadline by which both chambers of
Congress must take a vote on final passage of the resolution in
question.\26\
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\26\S. 21, 115th Cong. (2017).
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These processes are designed to increase Congress'
accountability for the content of major rules and foster more
deliberation before major rules take effect.
III. Legislative History
Senator Rand Paul (R-KY) introduced S. 21 on January 4,
2017, with Senators Roy Blunt (R-MO), Todd Young (R-IN), Mike
Rounds (R-SD), Chuck Grassley (R-IA), Cory Gardner (R-CO), Joni
Ernst (R-IA), Tom Cotton (R-AR), Shelly Moore Capito (R-WV),
Steve Daines (R-MT), John McCain (R-AZ), Tim Scott (R-SC), Ted
Cruz (R-TX), John Barrasso (R-WY), Mike Crapo (R-ID), John
Thune (R-SD), James M. Inhofe (R-OK), Deb Fischer (R-NE), Ron
Johnson (R-WI), John Boozman (R-AR), Dean Heller (R-NV), Dan
Sullivan (R-AK), Michael B. Enzi (R-WY), Mike Lee (R-UT), Pat
Roberts (R-KS), Ben Sasse (R-NE), Jerry Moran (R-KS), and Bill
Cassidy (R-LA). Senators Roger Wicker (R-MS), John Cornyn (R-
TX), James E. Risch (ID), David Perdue (R-GA), Rob Portman (R-
OH), Jeff Flake (R-AZ), John Kennedy (R-LA), and Johnny Isakson
(R-GA) later joined as cosponsors.
The bill was referred to the Committee. The Committee
considered S. 21 at a May 17, 2017 business meeting.
The Committee ordered S. 21 reported favorably on May 17,
2017, by a roll call vote of 8 yeas to 6 nays. Senators voting
in the affirmative were Johnson, McCain, Portman, Paul,
Lankford, Enzi, Hoeven, and Daines. Senators voting in the
negative were McCaskill, Tester, Heitkamp, Peters, Hassan, and
Harris. For the record only, Senator Carper voted nay by proxy.
Consistent with Committee Rule 11, the Committee reports the
bill with a technical amendment by mutual agreement of the
Chairman and Ranking Member.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section provides the bill's short title, the
``Regulations from the Executive in Need of Scrutiny Act of
2017.''
Section 2. Purpose
This section describes the bill's purpose as increasing
Congressional responsibility in the regulatory process. It
states that despite the ``Constitution grant[ing] all
legislative powers to Congress,'' such power have been
increasingly delegated to non-legislative authorities. By
requiring Congress to explicitly vote to approve major
regulations, the bill will result in more accountability to the
public for the regulations with which they must comply.
Section 3. Congressional review of agency rulemaking
This section amends sections 801 to 807 of the CRA to
reflect new requirements for promulgating a Federal regulation
as well as new review and approval mechanisms for Congress to
consider rules.
The bill amends Section 801 subparagraph (a)(1)(A) of the
CRA to require the agency submitting a rule for review to
include, in the Federal Register and in a report to Congress
and the Comptroller General, additional information and
analysis pertaining to the rule. Subparagraph (a)(2)(A) adds a
requirement that the Comptroller General provide a report to
Congress on any major rules which includes ``an assessment of
whether the major rule imposes any new limits or mandates on
private-sector activity.'' Subparagraph (a)(2)(B) requires
Federal agencies to information to the Comptroller General
relevant to the major rule report l.
Subparagraph (a)(3) stipulates that a major rule's
effective date is when a joint resolution on the rule is
enacted, or the date included in the rule, whichever is later.
Subparagraph (a)(4) stipulates that nonmajor rules take
effect only if they are submitted to Congress and Congress does
not disapprove of the rule.
Subparagraph (a)(5) prohibits Congress from approving a
major rule beyond the period specified in this bill.
Subsection (b) states that Congress must enact a joint
resolution of approval within 70 session days from receipt of a
major rule for it to take effect.
Subsection (c) allows the President to temporarily put into
effect (for up to 90 days) a major rule if he or she makes a
determination that the rule is needed due to: an imminent
threat to health and safety; enforcement of criminal laws;
national security; or implementation of international trade
agreement. This determination does not affect the resolution
procedures in Section 802.
Subsection (d) provides a new review period for rules
submitted during the last 60 session days (in the Senate) or
legislative days (in the House) before a Congress adjourns, all
the way through to the convening of the next session. The new
review window begins as if the rule is first published or
submitted on the 15th session day (Senate) or legislative day
(House) of the new session and otherwise treated the same as
any other rule.
Subsections 802(a) through (h) describe the specific
requirements for the content of the joint resolution and
expedited procedures related to a resolution of approval for a
major rule. They require the majority leader in each chamber to
introduce a joint resolution (after receipt of a major rule's
report) within three session or legislative days, whichever is
applicable, with no amendments allowed at any point. It is then
referred to the committee(s) of jurisdiction which has 15
(session/legislative) days to consider the resolution. The
subsections further prescribe specific floor procedures in each
chamber which limit debate, prevent moving on to other business
without disposal of the resolution, or postponing a vote on
final passage beyond the allowed review period described in
section 801.
Section 803 describes the disapproval procedure for
nonmajor rules. This section is largely based on the existing
authorities in 5 U.S.C. Sec. 802. Under this section, Congress
is given a limited period of time in which to enact a joint
resolution of disapproval for a nonmajor rule, otherwise the
rule goes into effect by default. The amount of time committees
are given to consider and report the rule is changed from 20
calendar days (in current law) to 15 session days which may be
the same, longer, or shorter depending on scheduling. This
section also describes procedures for floor consideration,
including what motions are privileged and allowable time for
debate.
Section 804 amends the existing section to provide for new
definitions for ``nonmajor rule'' and ``submission or
publication date,'' while retaining definitions for ``Federal
agency,'' ``major rule,'' and ``rule.''
Section 805 adds to the existing section to clarify the
scope of allowable judicial review. It states that courts may
review whether an agency complied with the requirements under
this chapter for a rule to take effect. It also clarifies that
should Congress enact a resolution of approval of a rule, that
resolution should not be interpreted as changing or expanding
the regulatory authority of an agency nor will it enter the
judicial record except on the question of whether a rule is in
effect.
Section 806 exempts rules and policies concerning monetary
policy and the Federal Reserve from this chapter.
Section 807 is the same as existing Section 808 and allows
for certain rules (dealing with hunting, fishing, or camping)
to take effect when the agency determines they should. The same
applies to rules where the agency finds good cause that notice
and comment are ``impracticable, unnecessary, or contrary to
the public interest'' and explains its reasoning for doing so
in the rule itself.
Section 4. Budgetary effects of rules subject to section 802 of title
5, United States Code
This section amends the Balanced Budget and Emergency
Deficit Control Act of 1985 to state that major rules, which
otherwise require approval in this bill, that are budgetary in
nature are treated as in effect unless not approved under the
major rules procedures.
Section 5. Government Accountability Office study of rules
This section requires the Comptroller General to submit a
study within one year of enactment that identifies the number
of rules in effect, how many of those rules are major, and an
estimate of their aggregate economic cost.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
July 14, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 21, the Regulations
from the Executive in Need of Scrutiny Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kathleen
Gramp.
Sincerely,
Keith Hall.
Enclosure.
S. 21--Regulations from the Executive in Need of Scrutiny Act of 2017
Summary: Under current law, a final federal rule can take
effect unless the Congress enacts a joint resolution of
disapproval. In contrast, S. 21 would require the Congress to
enact a joint resolution of approval before any major rule
could take effect. Thus under S. 21 new major regulations would
depend on future legislation.
CBO and the staff of the Joint Committee on Taxation (JCT)
cannot determine the budgetary effect of making all future
major rules subject to Congressional approval, but we expect
that, in the absence of subsequent legislative action affecting
those rules, enacting S. 21 would have significant effects on
both direct spending and revenues. Pay-as-you-go procedures
apply because enacting S. 21 would affect direct spending and
revenues.
CBO cannot determine whether enacting S. 21 would increase
net direct spending or on-budget deficits by more than $5
billion in any of the four consecutive 10-year periods
beginning in 2028.
CBO expects that implementing S. 21 also could have a
significant impact on spending subject to appropriation,
although we cannot determine the magnitude of that effect.
CBO expects that S. 21 would impose no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA).
Estimated cost to the Federal Government:
Background
The Congressional Review Act (CRA) of 1996 requires federal
agencies to submit final rules to the Congress and the
Comptroller General before they may take effect. Final rules
may be annulled by the Congress if a joint resolution of
disapproval is enacted into law. S. 21 would amend current law
to require instead that the Congress enact a joint resolution
of approval before any major rule may take effect, thereby
making implementation of major rules contingent on future
Congressional action.
The CRA defines a major rule as one that the Office of
Management and Budget (OMB) finds has resulted in or is likely
to result in:
An annual effect on the economy of
$100,000,000 or more;
A major increase in costs or prices for
consumers, individual industries, federal, state, or
local government agencies, or geographic regions; or
Significant adverse effects on competition,
employment, investment, productivity, innovation, or
the ability of U.S.-based enterprises to compete with
foreign-based enterprises in domestic and export
markets.\1\
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\1\See 5 USC Sec. 804(2).
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S. 21 would establish special Congressional procedures and
explicit timelines for enacting a joint resolution of approval
for major rules. Under the bill, if a joint resolution of
approval is not enacted within 70 legislative (or session) days
of the Congress receiving the major rule and an accompanying
report from a federal agency, the rule would not take effect.
Further, the Congress could not reconsider a joint resolution
of approval relating to that rule in the same Congress.
However, a major rule could take effect for one 90-calendar-day
period without Congressional approval if the President
determines, via an executive order, that it was necessary for
one of four reasons: (1) to respond to an imminent threat to
health or safety, (2) to enforce criminal laws, (3) to protect
national security, or (4) to implement an international trade
agreement.
Historical data show that federal agencies published 117
major rules in 2016, and 84 major rules, on average, over the
past five calendar years.\2\ Major rules published in recent
years include ones that established standards for the
reliability of critical infrastructure, set Medicare payment
rates for inpatient psychiatric facilities, and established
national ambient air quality standards for ozone pollution.
However, looking to recent major rules as a way to estimate the
number or scope of future major rules that would be affected by
S. 21 may not be a good guide to what would happen under the
bill because agencies might change course if the bill was
enacted.
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\2\GAO Federal Rules Database, www.gao.gov/legal/congressional-
review-act.
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Because major rules are issued to implement current law,
the budgetary effects of anticipated rules are reflected in
CBO's baseline projections. For example, annual rules establish
new payment rates for a variety of Medicare services that
reflect changes in the price indices used for those services
under current law. Those rules often result in an increase in
payment rates and thus an increase in spending, which are
incorporated in the baseline.
Under the Deficit Control Act, which governs the contents
of the baseline, actions that are contingent on future
Congressional action are generally not included in CBO's
projections. S. 21 would amend that Act to require that CBO
continue to assume that any planned major rule will go into
effect, unless the rule has already been promulgated and the
Congress has not enacted a resolution of approval within the
specified 70-day period. (Without that provision amending the
Deficit Control Act, S. 21 would result in baseline projections
that did not reflect the budgetary impact of major rules.)
Under S. 21, CBO's baseline projections would continue to
include the budgetary impact of major rules even though future
Congressional action would be necessary to approve them. For
example, if S. 21 is enacted, baseline projections would
continue to reflect the assumption that payment rates and
related federal spending for Medicare providers would rise over
time, even though raising those rates would require future
Congressional action. Accordingly, a Congressional resolution
of approval for a major rule raising such rates would be
estimated as having no cost relative to CBO's baseline
projections. (CBO's subsequent baseline projections would be
updated to exclude the budgetary impact of the proposed rule if
it is not approved.)
Impact on direct spending
To assess the budgetary effects of S. 21, CBO considered
the costs and savings that would be realized if anticipated
major rules do not take effect. The consequences would vary
tremendously because the budgetary impact of different rules
varies considerably.
Preventing some major rules from taking effect would result
in costs to the federal government, while preventing others
would result in savings. On net, CBO estimates that enacting S.
21 would probably have a significant effect on direct spending
(more than $500,000), but we cannot determine the magnitude or
sign of those changes for any year or over time.
Many major rules that occur routinely under current law are
related to the government's health care programs, in particular
Medicare. For example, some rules establish annual updates to
payment rates for services provided by hospitals, physicians,
and other Medicare providers. Enacting S. 21 would freeze
payment structures for those providers at current levels
pending future Congressional actions. Similarly, payment rates
(such as the annual benefit amount for each individual) under
some other federal programs might also be frozen under the bill
in the absence of future Congressional actions. CBO cannot
estimate the net impact of all such changes.
Impact on revenues
Enacting S. 21 would also affect tax revenues, and JCT
expects that preventing regulations from going into effect
could reduce collections of revenues in some cases and increase
collections in other cases. JCT cannot determine the sign or
magnitude of the possible effects on revenues.
Impact on spending subject to appropriation
S. 21 also would affect programs funded through the annual
appropriation process. However, CBO cannot determine the
magnitude of such effects. For example, if the major rules
issued by the Environmental Protection Agency could not take
effect, spending by the agency would decline, assuming future
appropriations were reduced accordingly.
The legislation also would require the Government
Accountability Office (GAO) to prepare a study on the rules and
their economic cost. Based on information from agencies and on
similar GAO reports, CBO estimates that completing the study
would cost less than $500,000 over the next few years.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. Pay-as-you-go procedures apply to S. 21 because
enacting the legislation would affect direct spending and
revenues. CBO and JCT cannot determine the sign or magnitude of
those effects.
Intergovernmental and private-sector impact: CBO expects
that S. 21 would impose no intergovernmental or private-sector
mandates as defined in UMRA. By requiring major rules to be
approved by a joint resolution of Congress and potentially
delaying or halting the implementation of those rules, the bill
could affect public or private entities in a number of ways,
including slowing reimbursements and eliminating or changing
regulatory requirements. Although the costs and savings tied to
those individual effects could be significant, CBO has no basis
for estimating either the overall direction or magnitude of
those effects on public or private entities because of
uncertainty about the nature and number of regulations
affected.
Estimate prepared by: Federal costs: Kathleen Gramp; Impact
on state, local, and tribal governments: Zachery Byrum; Impact
on the private sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Assistant Director for
Budget Analysis.
VII. Minority Views
Minority Views of Senators Claire McCaskill, Thomas R. Carper, Heidi
Heitkamp and Maggie Hassan
While it is important for Congress to conduct regular
oversight of the federal rulemaking process, S. 21, the
Regulations in Need of Scrutiny Act of 2017 (REINS) is a
significant departure from the longstanding separation of
powers between the Legislative and Executive branches that
would abolish the regulatory process for major rules and
undermine much-needed protections for the American people.
Critics of the federal rulemaking process raise a variety
of concerns. Most observers agree, for example, that the
process needs to be more open, transparent and accessible. Some
argue that the process is stacked to favor inaction, denying
Americans the protections they need and deserve. Others argue
that agencies are given too much authority to regulate and do
not do enough to take competing interests into account when
promulgating regulations. However, rather than thoughtfully
seeking to resolve these, or any other issue raised by
stakeholders, the REINS Act would create additional bureaucracy
and political considerations into a process intended to be
based on sound and thorough analysis.
The REINS Act would require both houses of Congress to
approve any major rule within a 70 day window. Absent
Congressional action within 70 days, the rule would not take
effect. This is a reversal from current law--the existing
Congressional Review Act process allows a regulation takes
effect unless Congress acts to affirmatively block the
proposal.\1\
---------------------------------------------------------------------------
\1\5 U.S.C. Sec. Sec. 801-808.
---------------------------------------------------------------------------
Nonpartisan observers have long opposed this idea, and the
concept may be unconstitutional. As early as 1977 the
nonpartisan Administrative Conference of the United States
(ACUS) recommended that, ``Congress should not, in general
legislation or as a routine practice, provide for prior
submission of agency rules for Congressional review and
possible veto.''\2\ This recommendation later became moot
following INS vs. Chadha where the Supreme Court ruled that a
one-house legislative veto was unconstitutional.\3\ Indeed the
REINS Act itself may violate this prohibition of a one-house
legislative veto.
---------------------------------------------------------------------------
\2\4 ACUS 63 (1977).
\3\Immigration and Naturalization Service v. Chadha, 462 U.S. 919
(1983).
---------------------------------------------------------------------------
Pursuant to the REINS Act, if just one chamber votes
against a resolution to approve a major rule, the rule will not
take effect. Even more concerning, either chamber could simply
refuse to bring a resolution to the floor to approve of the
rule within the 70-day window, killing the regulation without
even allowing a vote on it, giving either chamber a one-house
legislative veto through inaction. While the committee report
cites instances where legal scholars have said a process such
as the one in this bill could be constitutional, significant
uncertainty remains around that question. As Ronald M. Levin,
Professor of Law at the Washington University Law School in St.
Louis testified before the House Judiciary Committee, ``there
is reason to think that the Act might not survive
constitutional scrutiny'' since ``the Act is intended to enable
a single House of Congress to control the implementation of
laws through the rulemaking process.''\4\
---------------------------------------------------------------------------
\4\Statement of Ronald M. Levin, William R. Orthwein Distinguished
Professor of Law, Washington University in St. Louis, H.R. 367 the
REINS Act of 2013: Promoting Jobs, Growth, and American
Competitiveness, Hearing before the U.S. House of Representatives
Committee on the Judiciary, Subcommittee on Regulatory, Commercial and
Antitrust Law (March, 5, 2013).
---------------------------------------------------------------------------
One practical effect of the REINS Act would be to
discourage agencies from taking on major rulemakings in the
first place and could grind the entire rulemaking process to a
halt if they choose to pursue rulemaking. The REINS Act would
replace the current system's reliance on science, expertise and
public process in developing rules with Congress' partisan
considerations and the potential influence of industry
lobbyists. Today the Federal rulemaking process relies on
technical expertise, data gathering and analysis and input from
stakeholders. These are areas of core competency and expertise
for Federal agencies. Members of Congress simply do not have
the technical and scientific expertise that agencies possess,
especially since Congress defunded its own Office of Technology
Assessment. As a result, agencies will be disinclined to put
the multi-year effort into the development of major rules that
would become mere recommendations that could be discarded
through Congressional inaction in just 70 days.
The process for regulating toxic chemicals established by
bipartisan and recently passed Frank R. Lautenberg Chemical
Safety for the 21st Century Act is a perfect example of the
deleterious effect the REINS Act would have on the regulatory
process and the potential impact it could have on the health of
Americans. Passage of that law was predicated on the notion
that the Environmental Protection Agency needed more resources
and clearer processes to accelerate its pace of rulemaking
because the previous regulatory regime for identifying and
regulating toxic chemicals was widely regarded as a failure.\5\
However, if the REINS Act were to be enacted, it would allow
Congress's political considerations to supersede the best
scientific information available to determine the safety of new
chemicals, determinations that nearly every Member of Congress
is ill-equipped to make.
---------------------------------------------------------------------------
\5\P.L. 114-182
---------------------------------------------------------------------------
Supporters argue that the REINS Act is simply reinserting
Congressional involvement in the rulemaking process. However,
this argument willfully ignores Congress' critical role in the
current process: the rules issued by a federal agency are based
on underlying authority given the agency by Congress in
legislation that directs such rulemaking in the first place.
Should Congress wish to limit rulemaking, it can already do so
by either enacting self-enforcing laws or being more
prescriptive in legislation to limit agencies' flexibility
rather than creating a potentially unconstitutional single-
house veto for every major rule.
Additionally, Congress already has other tools to ensure
effective oversight of agency regulatory actions, including the
ability to control appropriations and conduct agency oversight.
Should Congress wish to overturn a regulation, it does not need
additional tools to do so; it can pass a law overturning the
regulation or restrict funding to carry out the rule. Congress
can also hold hearings to publicize its concerns with the rule.
As we have seen this year, it can also disapprove final rules
before they are implemented under the current Congressional
Review Act process.\6\
---------------------------------------------------------------------------
\6\5 U.S.C. Sec. 801(b).
---------------------------------------------------------------------------
Not only would S. 21 throw sand in the gears of rulemaking
it would also throw sand in the gears of legislating. Congress
currently struggles to fulfill its basic functions of passing
budgets and thirteen appropriation bills annually. In fact it
has been over 20 years sign the legislative branch was able to
pass all of the appropriations bills on time.\7\ In addition,
Members of Congress introduced 10,078 bills in the 114th
Congress, and sent 329 of those to President Obama. In the
113th Congress, Members introduced 8,911 bills and sent 282 to
President Obama. It seems unlikely, then, that both chambers of
Congress would act on the majority of the major rules presented
for consideration.
---------------------------------------------------------------------------
\7\https://bipartisanpolicy.org/blog/can-congress-deliver-
appropriations-bills-on-time/
---------------------------------------------------------------------------
Whatever we do here in Congress and on this Committee to
reform the regulatory process should encourage reducing burdens
and increasing transparency while achieving the greatest public
benefit. It should be our goal to have the most efficient,
effective, and transparent regulatory process possible, and to
ensure that process results in common-sense regulations. We do
not believe this bill would improve the regulatory process, and
in fact would make the process far less efficient and insert
additional political considerations into the process. For these
reasons we strongly oppose S. 21 and urge our colleagues to
join us in opposition.
VIII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 21 as reported are shown as follows (existing law proposed
to be omitted is enclosed in brackets, new matter is printed in
italic, and existing law in which no change is proposed is
shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 2--THE CONGRESS
* * * * * * *
CHAPTER 20--EMERGENCY POWERS TO ELIMINATE BUDGET DEFICITS
* * * * * * *
Subchapter I--Elimination of Deficits in Excess of Maximum Deficit
Amount
* * * * * * *
SEC. 907. THE BASELINE.
(a) * * *
(b) * * *
(1) * * *
(2) * * *
(A) * * *
* * * * * * *
(D) * * *
(E) Budgetary effects of rules subject to
section 802 of title 5, united states code.--
Any rules subject to the congressional approval
procedure set forth in section 802 of chapter 8
of title 5, United States Code, affecting
budget authority, outlays, or receipts shall be
assumed to be effective unless it is not
approved in accordance with such section.
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
Sec.
801. Congressional review.
802. Congressional [disapproval] approval procedure for major rules.
803. [Special rule on statutory, regulatory, and judicial deadlines]
Congressional disapproval procedure for nonmajor rules.
804. Definitions.
805. Judicial review.
806. [Applicability; severability] Exemption for monetary policy.
807. [Exemption for monetary policy] Effective date of certain rules.
[808. Effective date of certain rules.]
SEC. 801. CONGRESSIONAL REVIEW
(a)(1)(A) Before a rule [can] may take effect, the Federal
agency promulgating such rule shall publish in the Federal
Register a list of information on which the rule is based,
including data, scientific and economic studies, and cost-
benefit analyses, and identify how the public can access such
information online, and shall submit to each House of the
Congress and to the Comptroller General 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.] a
classification of the rule as a major or nonmajor rule,
including an explanation of the classification
specifically addressing each criteria for a major rule
contained within subparagraphs (A) through (C) of
section 804(2);
(iv) a list of any other related regulatory actions
intended to implement the same statutory provision or
regulatory objective as well as the individual and
aggregate economic effects of those actions; and
(v) 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 and make available to
each House of Congress--
(i) a complete copy of the cost-benefit analysis of
the rule, if any[;], including an analysis of any jobs
added or lost, differentiating between public and
private sector jobs;
(ii) the agency's actions [relevant] pursuant to
sections 603, 604, 605, 607, and 609[;] of this title;
(iii) the agency's actions [relevant] pursuant 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 shall provide a report on
each major rule to the committees of jurisdiction [in each
House of the Congress] by the end of 15 calendar days after the
submission or publication date [as provided in section
802(b)(2)]. The report of the Comptroller General shall include
an assessment of the agency's compliance with procedural steps
required by paragraph (1)(B) and an assessment of whether the
major rule imposes any new limits or mandates on private-sector
activity.
(B) Federal agencies shall cooperate with the Comptroller
General by providing information relevant to the Comptroller
General's report under subparagraph (A).
(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 receives the report submitted under
paragraph (1); or
[(ii) the rule is published in the Federal Register,
if so published;
[(B) if the Congress passes a joint resolution of
disapproval described in section 802 relating to the rule, and
the President signs a veto of such resolution, the earlier
date--
[(i) on which either House of Congress votes and
fails to override the veto of the President; or
[(ii) occurring 30 session days after the date on
which the Congress received the veto and objections of
the President; or
[(C) the date the rule would have otherwise taken effect,
if not for this section (unless a joint resolution of
disapproval under section 802 is enacted).] upon enactment of a
joint resolution of approval described in section 802 or as
provided for in the rule following enactment of a joint
resolution of approval described in section 802, whichever is
later.
(4) [Except for a] A nonmajor rule[, a] rule shall take
effect as [otherwise] provided by section 803[law] after
submission to Congress under paragraph (1).
(5) [Notwithstanding paragraph (3), the effective date of a
rule shall not be delayed by operation of this chapter beyond
the date on which either House of Congress votes to reject a
joint resolution of disapproval under section 802.] If a joint
resolution of approval relating to a major rule is not enacted
within the period provided in subsection (b)(2), then a joint
resolution of approval relating to the same rule may not be
considered under this chapter in the same Congress by either
House of Representatives or the Senate.
(b)(1) A major rule shall not take effect [(or continue),
if] unless the Congress enacts a joint resolution of
[dis]approval[,] described under section 802[, of the rule].
(2) [A rule that does not take effect (or does not
continue) under paragraph (1) may not be reissued in
substantially the same form, and a new rule that is
substantially the same as such a rule may not be issued, unless
the reissued or new rule is specifically authorized by a law
enacted after the date of the joint resolution disapproving the
original rule.] If a joint resolution described in subsection
(a) is not enacted into law by the end of 70 session days or
legislative days, as applicable, beginning on the date on which
the report referred to in subsection (a)(1)(A) is received by
Congress (excluding days either House of Congress is adjourned
for more than 3 days during a session of Congress), then the
rule described in that resolution shall be deemed not to be
approved and such rule shall not take effect.
(c)(1) Notwithstanding any other provision of this section
(except subject to paragraph (3)), a major rule [that would not
take effect by reason of subsection (a)(3)] may take effect[,]
for one 90-calendar-day period if the President makes a
determination under paragraph (2) and submits written notice of
such determination to the Congress.
(2) Paragraph (1) applies to a determination made by the
President by Executive order that the major rule should take
effect because such rule is--
(A) necessary because of an imminent threat to health
or safety or other emergency;
(B) necessary for the enforcement of criminal laws;
(C) necessary for national security; or
(D) issued pursuant to any statute implementing an
international trade agreement.
(3) An exercise by the President of the authority under
this subsection shall have no effect on the procedures under
section 802 [or the effect of a joint resolution of disapproval
under this section].
(d)(1) In addition to the opportunity for review otherwise
provided under this chapter, in the case of any rule for which
a report was submitted in accordance with subsection (a)(1)(A)
during the period beginning on the date occurring--
(A) in the case of the Senate, 60 session days, or
(B) in the case of the House of Representatives, 60
legislative days, before the date the Congress is
scheduled to adjourn[s] a session of Congress through
the date on which the same or succeeding Congress first
convenes its next session, sections 802 and 803 shall
apply to such rule in the succeeding session of
Congress.
(2)(A) In applying sections 802 and 803 for purposes of
such additional review, a rule described under paragraph (1)
shall be treated as though--
(i) such rule were published in the Federal Register
[(as a rule that shall take effect)] on--
(I) in the case of the Senate, the 15th
session day[,]; or
(II) in the case of the House of
Representatives, the 15th legislative day,
after the succeeding session of Congress first
convenes; and
(ii) a report on such rule were submitted to Congress
under subsection (a)(1) on such date.
(B) Nothing in this paragraph shall be construed to affect
the requirement under subsection (a)(1) that a report shall be
submitted to Congress before a rule can take effect.
(3) A rule described under paragraph (1) shall take effect
as otherwise provided by law (including other subsections of
this section).
[(f) Any rule that takes effect and later is made of no
force or effect by enactment of a joint resolution under
section 802 shall be treated as though such rule had never
taken effect.]
[(g) If the Congress does not enact a joint resolution of
disapproval under section 802 respecting a rule, no court or
agency may infer any intent of the Congress from any action or
inaction of the Congress with regard to such rule, related
statute, or joint resolution of disapproval.]
SEC. 802. CONGRESSIONAL [REVIEW] APPROVAL PROCEDURE FOR MAJOR RULES
(a)(1) 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] addressing a report classifying a rule as major pursuant to
section 801(a)(1)(A)(iii) that--[is received by Congress 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).]
(A) bears no preamble;
(B) bears the following title (with blanks filled as
appropriate): ``Approving the rule submitted by ___
relating to ___.'';
(C) includes after its resolving clause only the
following (with blanks filled as appropriate): ``That
Congress approves the rule submitted by ___ relating to
___.''; and
(D) is introduced pursuant to paragraph (2).
(2) After a House of Congress received a report classifying
a rule as major pursuant to section 801(a)(1)(A)(iii), the
majority leader of that House (or his or her respective
designee) shall introduce (by request, if appropriate) a joint
resolution described in paragraph (1)--
(A) in the case of the House of Representatives,
within 3 legislative days; and
(B) in the case of the Senate, within 3 session days.
(3) A joint resolution described in paragraph (1) shall not
be subject to amendment at any stage of proceeding.
(b)[(1)] A joint resolution described in subsection (a)
shall be referred [to the committees]in each House of Congress
to the committees having[with] jurisdiction[.] over the
provision of law under which the rule is issued.
[(2) For purposes of this section, the term ``submission or
publication date'' means the later of the date on which--
[(A) the Congress receives the report submitted under
section 801(a)(1); or
[(B) the rule is published in the Federal Register,
if so published.]
(c) In the Senate, if the committee or committees to which
[is referred]a joint resolution described in subsection (a) has
been referred have not reported [such joint resolution (or an
identical joint resolution)] it at the end of [20 calendar]15
session days after [the submission or publication date defined
under subsection (b)(2)] its introduction, such committee or
committees [may] shall be automatically discharged from further
consideration of [such joint] the resolution [upon a petition
supported in writing by 30 Members of the Senate, and such
joint resolution] and it shall be placed on the calendar. A
vote on final passage of the resolution shall be taken on or
before the close of the 15th session day after the resolution
is reported by the committee or committees to which is was
referred, or after such committee or committees have been
discharged from further consideration of the resolution.
(d)(1) In the Senate, when the committee or committees to
which a joint resolution is referred [has] have reported, or
when a committee or committees [is] are discharged (under
subsection (c)) from further consideration of a joint
resolution described in subsection (a), it is at any time
thereafter in order (even though a previous motion to the same
effect has been disagreed to) for a motion to proceed to the
consideration of the joint resolution, and all points of order
against the joint resolution (and against consideration of the
joint resolution) are waived. The motion is not subject to
amendment, or to a motion to postpone, or to a motion to
proceed to the consideration of other business. A motion to
reconsider the vote by which the motion is agreed to or
disagreed to shall not be in order. If a motion to proceed to
the consideration of the joint resolution is agreed to, the
joint resolution shall remain the unfinished business of the
Senate until disposed of.
(2) In the Senate, debate on the joint resolution, and on
all debatable motions and appeals in connection therewith,
shall be limited to not more than [10] 2 hours, which shall be
divided equally between those favoring and those opposing the
joint resolution. A motion to further [to] limit debate is in
order and not debatable. An amendment to, or a motion to
postpone, or a motion to proceed to the consideration of other
business, or a motion to recommit the joint resolution is not
in order.
(3) * * *
(4) * * *
(e) [In the Senate the procedure specified in subsection
(c) or (d) shall not apply to the consideration of a joint
resolution respecting a rule--
[(1) after the expiration of the 60 session days
beginning with the applicable submission or publication
date, or
[(2) if the report under section 801(a)(1)(A) was
submitted during the period referred to in section
801(d)(1), after the expiration of the 60 session days
beginning on the 15th session day after the succeeding
session of Congress first convenes.] In the House of
Representatives, if any committee to which a joint
resolution described in subsection (a) has been
referred has not reported it to the House at the end of
15 legislative days after its introduction, such
committee shall be discharged from further
consideration of the joint resolution, and it shall be
placed on the appropriate calendar. On the second and
fourth Thursdays of each month it shall be in order at
any time for the Speaker to recognize a Member who
favors passage of a joint resolution that has appeared
on the calendar for at least 5 legislative days to call
up that joint resolution for immediate consideration in
the House without intervention of any point of order.
When so called up a joint resolution shall be
considered as read and shall be debatable for 1 hour
equally divided and controlled by the proponent and an
opponent, and the previous question shall be considered
as ordered to its passage without intervening motion.
It shall not be in order to reconsider the vote on
passage. If a vote on final passage of the joint
resolution has not been taken by the third Thursday on
which the Speaker may recognize a Member under this
subsection, such vote shall be taken on that day.
(f)(1) If, before [the passage by one House of] passing a
joint resolution [of that House] described in subsection (a),
[that] one House receives from the other [House] a joint
resolution [described in subsection (a), then the following
procedures shall apply:] having the same text, then--
[(1)](A) The joint resolution of the other House shall
not be referred to a committee[.] ; and
[(2) With respect to a joint resolution described in
subsection (a) of the House receiving the joint resolution--]
[(A)](B) the procedure in [that] the receiving House
shall be the same as if no joint resolution had been
received from the other House[; but]
[(B)] until the vote on [final] passage, [shall be
on] when the joint resolution [of] received from the
other House[.] shall supplant the joint resolution of
the receiving House.
(2) This subsection shall not apply to the House of
Representatives if the joint resolution received from the
Senate is a revenue measure.
(g) If either House has not taken a vote on final passage
of the joint resolution by the last day of the period described
in section 801(b)(2), then such vote shall be taken on the dat.
[g](h) This section and section 803 [is] are enacted by
Congress--
(1) as an exercise of the rulemaking power of the
Senate and House of Representatives, respectively, and
as such [it is] are deemed [a]to be part of the rules
of each House, respectively, but applicable only with
respect to the procedure to be followed in that House
in the case of a joint resolution described in
subsection (a), and it [supersedes] superseding other
rules only [to the extent that it is inconsistent with
such rules] where explicitly so; and
(2) with full recognition of the constitutional right
of either House to change the rules (so far as they
[relating] relate to the procedure of that House) at
any time, in the same manner[,] and to the same extent
as in the case of any other rule of that House.
SEC. 803. [SPECIAL RULE ON STATUTORY, REGULATORY, AND JUDICIAL
DEADLINES] CONGRESSIONAL DISAPPROVAL FOR NONMAJOR
RULES
[(a) In the case of any deadline for, relating to, or
involving any rule which does not take effect (or the
effectiveness of which is terminated) because of enactment of a
joint resolution under section 802, that deadline is extended
until the date 1 year after the date of enactment of the joint
resolution. Nothing in this subsection shall be construed to
affect a deadline merely by reason of the postponement of a
rule's effective date under section 801(a).]
(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 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 nonmajor rule submitted by the
__ relating to __, and such rule shall have no force or
effect.' (The blank spaces being appropriately filled in).
[(b) The term ``deadline'' means any date certain for
fulfilling any obligation or exercising any authority
established by or under any Federal statute or regulation, or
by or under any court order implementing any Federal statute or
regulation.]
(b) A joint resolution described in subsection (a) shall be
referred to the committees in each House of Congress with
jurisdiction.
(c) In the Senate, if the committee to which is referred a
joint resolution described in subsection (a) has not reported
such joint resolution (or an identical joint resolution) at the
end of 15 session days after the date of introduction of the
joint resolution, such committee may be discharged from further
consideration of such joint resolution upon a petition
supported in writing by 30 Members of the Senate, and such
joint resolution shall be placed on the calendar.
(d)(1) In the Senate, when the committee to which a joint
resolution is referred has reported, or when a committee is
discharged (under subsection (c)) from further consideration of
a joint resolution described in subsection (a), it is at any
time thereafter in order (even though a previous motion to the
same effect has been disagreed to) for a motion to proceed to
the consideration of the joint resolution, and all points of
order against the joint resolution (and against consideration
of the joint resolution) are waived. The motion is not subject
to amendment, or to a motion to postpone, or to a motion to
proceed to the consideration of other business. A motion to
reconsider the vote by which the motion is agreed to or
disagreed to shall not be in order. If a motion to proceed to
the consideration of the joint resolution is agreed to, the
joint resolution shall remain the unfinished business of the
Senate until disposed of.
(2) In the Senate, debate on the joint resolution, and on
all debatable motions and appeals in connection therewith,
shall be limited to not more than 10 hours, which shall be
divided equally between those favoring and those opposing the
joint resolution. A motion to further limit debate is in order
and not debatable. An amendment to, or a motion to postpone, or
a motion to proceed to the consideration of other business, or
a motion to recommit the joint resolution is not in order.
(3) In the Senate, immediately following the conclusion of
the debate on a joint resolution described in subsection (a),
and a single quorum call at the conclusion of the debate if
requested in accordance with the rules of the Senate, the vote
on final passage of the joint resolution shall occur.
(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure
relating to a joint resolution described in subsection (a)
shall be decided without debate.
(e) In the Senate, the procedure specified in subsection
(c) or (d) shall not apply to the consideration of a joint
resolution respecting a nonmajor rule--
(1) after the expiration of the 60 session days
beginning with the applicable submission or publication
date; or
(2) if the report under section 801(a)(1)(A) was
submitted during the period referred to in section
801(d)(1), after the expiration of the 60 session days
beginning on the 15th session day after the succeeding
session of Congress first convenes.
(f) If, before the passage by one House of a joint
resolution of that House described in subsection (a), that
House receives from the other House a joint resolution
described in subsection (a), then the following procedures
shall apply:
(1) The joint resolution of the other House shall not
be referred to a committee.
(2) With respect to a joint resolution described in
subsection (a) of the House receiving the joint
resolution--
(A) the procedure in that House shall be the
same as if no joint resolution had been
received from the other House; but
(B) the vote on final passage shall be on the
joint resolution of the other House.
SEC. 804. DEFINITIONS
For purposes of this chapter[--]:
(1) * * *
(2) The term ``major rule'' means any rule, including
an interim final rule, that the Administrator of the
Office of Information and Regulatory Affairs of the
Office of Management and Budget finds has resulted in
or is likely to result in--
(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.
[The term does not include any rule promulgated under
the Telecommunications Act of 1996 and the amendments
made by that Act.]
(3) The term ``nonmajor rule'' means any rule that is
not a major rule.
[(3)] (4) The term ``rule'' has the meaning given
such term in section 551, except that such term does
not include--
(A) any rule of particular applicability,
including a rule that approves or prescribes
for the future rates, wages, prices, services,
or allowances therefore, corporate or financial
structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices
or disclosures bearing on any of the foregoing;
(B) any rule relating to agency management or
personnel; or
(C) any rule of agency organization,
procedure, or practice that does not
substantially affect the rights or obligations
of non-agency parties.
(5) The term ``submission or publication date'',
except as otherwise provided in this chapter, means--
(A) in the case of a major rule, the date on
which the Congress receives the report
submitted under section 801(a)(1); and
(B) in the case of a nonmajor rule, the later
of--
(i) the date on which the Congress
receives the report submitted under
section 801(a)(1); and
(ii) the date on which the nonmajor
rule is published in the Federal
Register, if so published.
SEC. 805. JUDICIAL REVIEW
(a) No determination, finding, action, or omission under
this chapter shall be subject to judicial review.
(b) Notwithstanding subsection (a), a court may determine
whether a Federal agency has completed the necessary
requirements under this chapter for a rule to take effect.
(c) The enactment of a joint resolution of approval under
section 802 shall not be interpreted to serve as a grant or
modification of statutory authority by Congress for the
promulgation of a rule, shall not extinguish or affect any
claim, whether substantive or procedural, against any alleged
defect in a rule, and shall not form part of the record before
the court in any judicial proceeding concerning a rule except
for purposes of determining whether or not the rule is in
effect.
[SEC. 806. APPLICABILITY; SEVERABILITY
[(a) This chapter shall apply notwithstanding any other
provision of law.
[(b) If any provision of this chapter or the application of
any provision of this chapter to any person or circumstance, is
held invalid, the application of such provision to other
persons or circumstances, and the remainder of this chapter,
shall not be affected thereby.]
[SEC. 807.] SEC. 806. EXEMPTION FOR MONETARY POLICY
Nothing in this chapter shall apply to rules that concern
monetary policy proposed or implemented by the Board of
Governors of the Federal Reserve System or the Federal Open
Market Committee.
[SEC. 808.] SEC. 807. EFFECTIVE DATE OF CERTAIN RULES
Notwithstanding section 801--
(1) any rule that establishes, modifies, opens,
closes, or conducts a regulatory program for a
commercial, recreational, or subsistence activity
related to hunting, fishing, or camping[,]; or
(2) any rule other than a major rule which an agency
for good cause finds (and incorporates the finding and
a brief statement of reasons therefore in the rule
issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public
interest,
shall take effect at such time as the Federal agency
promulgating the rule determines.