[Senate Report 116-311]
[From the U.S. Government Publishing Office]
Calendar No. 614
116th Congress} { Report
SENATE
2d Session } { 116-311
======================================================================
REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2019
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 92
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]
December 14, 2020.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2020
-----------------------------------------------------------------------------------
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Joshua P. McLeod, Senior Professional Staff Member
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Yogin J. Kothari, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 614
116th Congress} { Report
SENATE
2d Session } { 116-311
======================================================================
REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2019
_______
December 14, 2020.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 92]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 92), 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 without
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary............................................1
II. Background and Need for the 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. Changes in Existing Law Made by the Bill, as Reported..........7
I. Purpose and Summary
The Regulations from the Executive in Need of Scrutiny Act
of 2019 (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. 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.\3\
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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\On October 16, 2017, the Committee approved S. 21, Regulations
from the Executive in Need of Scrutiny Act of 2017. That bill is
substantially similar in purpose to S. 92. Accordingly, this committee
report is in large part a reproduction of Chairman Johnson's committee
report for S. 21, S. Rep. No. 116-169.
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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 95,000 new final Federal regulations,\17\
over 1,700 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 23 have been passed by
both chambers and sent to the President; of those, only 17 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 Aug. 10, 2020) (search Mar. 30, 1996 through Aug. 10, 2020).
\18\See U.S. Gov't Accountability Off., http://www.gao.gov/legal/
congressional-review-act/
overview (last visited Aug. 10, 2017) (search Mar. 30, 1996 through
Aug. 10, 2020).
\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); H.J. Res. 76, 116th Cong. (2019-2020 (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), H.J. Res. 111, 115th Cong.
(2017) (enacted as Pub. L. No. 115-74); S.J. Res. 57, 115th Cong.
(2018) (enacted as Pub. L. No. 115-172) (the seventeen 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.
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. 92 on January 10,
2019, with Senators Chuck Grassley (R-IA), Todd Young (R-IN),
Bill Cassidy (R-LA), Joni Ernst (R-IA), Ted Cruz (R-TX), Roy
Blunt (R-MO), Kevin Cramer (R-ND), Tom Cotton (R-AR), James
Risch (R-ID), Steve Daines (R-MT), Jerry Moran (R-KS), Mike
Braun (R-IN), Marsha Blackburn (R-TN), Pat Toomey (R-PA), Ron
Johnson (R-WI), David Perdue (R-GA), Rob Portman (R-OH), John
Barrasso (R-WY), James Inhofe (R-OK), Shelley Moore Capito (R-
WV), Ben Sasse (R-NE), John Kennedy (R-LA), Cory Gardner (R-
CO), Michael Enzi (R-WY), Martha McSally (R-AZ), Pat Roberts
(R-KS), Tim Scott (R-SC), Dan Sullivan (R-AK), Marco Rubio (R-
FL), Mike Rounds (R-SD), Mike Lee (R-UT), Deb Fischer (R-NE),
Johnny Isakson (R-GA), and Mitch McConnell (R-KY). Senators
Mike Crapo (R-ID), Cindy Hyde-Smith (R-MS), John Boozman (R-
AR), John Cornyn (R-TX), Roger Wicker (R-MS), Josh Hawley (R-
MO), John Thune (R-SD), Rick Scott (R-FL) later joined as
cosponsors. The bill was referred to the Committee. The
Committee considered S. 92 at a July 22, 2020 business meeting.
The Committee ordered S. 92 reported favorably on July 22,
2020, by a roll call vote of 8 yeas to 5 nays. Senators voting
in the affirmative were Johnson, Portman, Paul, Lankford,
Romney, Scott, Enzi, and Hawley. Senators voting in the
negative were Peters, Carper, Hassan, Harris, Rosen. For the
record only, Senator Sinema voted nay by proxy.
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
2019.''
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 has 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 provide information to the Comptroller
General relevant to the major rule report.
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
CBO failed to provide the Committee with a cost estimate
in time for the final reporting deadline of the 116th Congress.
VII. 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. 92 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) * * *
* * * * * * *
(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).
[(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.]
[(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 day.
[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 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.
* * * * * * *
[all]