Taken from the 2000 Congressional Record, Start page H8706 TRUTH IN REGULATING ACT OF 2000 (House of Representatives - October 03, 2000) The Chair recognizes the gentleman from Wisconsin (Mr. Ryan). [TIME: 1915] Mr. RYAN of Wisconsin. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, S. 1198 is Truth in Regulating Act of 2000. It is a bipartisan good government bill. It establishes a regulatory analysis function with the General Accounting Office. This function is intended to enhance congressional responsibility for regulatory decisions developed under the laws Congress enacts. It is the product of the leadership over the past few years of the gentlewoman from New York (Mrs. Kelly), the chairwoman of the Subcommittee on Regulatory Reform and Paperwork Reduction, who will be joining us here in a few minutes. The most basic reason for supporting this bill is constitutional, as Congress needs a Congressional Budget Office to check and balance the executive branch in the budget office, so too does it need an analytic capability to check and balance the executive branch in the regulatory process. GAO is a logical location since it already has some regulatory review responsibilities under the Congressional Review Act. Mr. Speaker, article 1, section 1 of the U.S. Constitution vests all legislative powers in the U.S. Congress. While Congress may not delegate its legislative functions, it routinely authorizes executive branch agencies to issue rules that implement laws passed by Congress. Congress has become increasingly concerned about its responsibility to oversee agency rulemaking, especially due to the extensive costs and impacts of Federal Rules. During the 105th Congress, the House Government Reform Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs chaired by the gentleman from Indiana (Mr. McIntosh) held a hearing on the earlier Kelly regulatory analysis bill, H.R. 1704. This bill sought to establish a new, freestanding congressional agency. The subcommittee then marked up and reported her bill, H.R. 1704, and called for the establishment of a new legislative branch, Congressional Office of Regulatory Analysis commonly referred to as CORA, to analyze all major rules and report to Congress on potential costs, benefits, and alternative approaches that could achieve the same regulatory goals at lower costs. This agency was intended to aid Congress in analyzing Federal regulations. The committee report stated Congress needs the expertise that CORA would provide to carry out its duty under the CRA. Currently Congress does not have the information it needs to carefully evaluate regulations. The only analyses it has to rely on are those provided by the agencies which promulgate the rules. There is no official, third-party analysis of new regulations. Unfortunately, CORA supporters in the 105th Congress could not overcome the resistance of the defenders of the regulatory status quo. Opponents argued that creating a new congressional agency would be fiscally irresponsible. But by this logic, Congress ought to abolish CBO, as an even more heroic demonstration of fiscal conservatism in action. Of course, most of us recognize that disbanding the CBO, however, penny-wise would be pound foolish. In this Congress, 106th Congress, the chairman of the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, the gentleman from Indiana (Chairman McIntosh), and myself, as vice chairman, and the gentlewoman from New York (Mrs. Kelly), chairwoman of Subcommittee on Regulatory Reform and Paperwork Reduction, seeking to accommodate the prejudice against a freestanding agency, introduced separate bills, H.R. 3021 and H.R. 3669 respectively, to establish a CORA function within the GAO, which is an existing legislative branch agency capable of performing such functions. The MacIntosh and Kelly bills were introduced in January and February. On May 9, the Senate passed its own regulatory analysis legislation, S. 1198, which we are now considering by unanimous consent, I might add. Like the McIntosh and Kelly bills, the Senate legislation would also establish a regulatory analysis function within the GAO. During the 106th Congress, the Committee on Government Reform did not hold a hearing specifically on one of the CORA bills. However, the subcommittee did hold a June 14 hearing entitled, does Congress delegate too much power to agencies and what should be done about it? Witnesses testified that Congress needs its own, in-house, regulatory analysis capability so that Members could especially provide timely comment on proposed rules, while there is still an opportunity to influence the costs, the scope, and the content of final agency action. On June 26, the gentlewoman from New York (Mrs. Kelly) and the gentleman from Indiana (Mr. McIntosh) introduced H.R. 4744, which included several needed improvements to S. 1198, along the lines suggested by the witnesses at this June 14th hearing. For example, whereas S. 1198 merely permits GAO to assist Congress in submitting timely comments on proposed regulations during the public comment period. H.R. 4744 would require GAO to provide such assistance. This is a critical improvement, because it is only by commenting on proposed rules during the public comment period that Congress has any real opportunity to influence the costs, the scope and the content of regulation. In addition, unlike S. 1198, H.R. 4744 would require GAO to review not only the agency's data but also the public's data to assure a more balanced evaluation, analyze not only rules costing $100 million or more, but also rules with a significant impact on small businesses, and examine whether alternatives not considered by the agencies might achieve the same goal in a more cost-effective manner or with greater net benefits. On June 29, the Committee on Government Reform favorably reported H.R. 4744 with a very thorough discussion of issues in its accompanying report, but on June 24, the gentlewoman from New York (Mrs. Kelly) and the gentleman from Indiana (Chairman McIntosh), along with the gentleman from California (Mr. Condit) and the gentleman from Texas (Mr. Turner) introduced H.R. 4924. This bill included only a few of H.R. 4744's improvements to S. 1198, the inclusion within the scope of GAO's purview of agency rules with a significant impact on small businesses, a directive to GAO to submit its independent evaluation of proposed rules within the public comment period, albeit only when doing so is practicable. House Report 106-772 explains the basis for these improvements. Mr. Speaker, H.R. 4924 was, in my judgment, inferior to H.R. 4744, which in itself is a watered-down version of the complete reform that is needed to implement Congress' Constitutional responsibility for regulatory oversight, but it was a step in the right direction. On June 29, the House passed H.R. 4924. Unfortunately, the Senate has not yet considered H.R. 4924. Since we are at the close of the 106th Congress, we now, however, urge the House's favorable consideration of S. 1198. Mr. Speaker, S. 1198 does not require or expect GAO to conduct any new regulatory impact analyses or cost benefit analyses, or other impact analyses. However, GAO's independent evaluation should lead the agencies to prepare any missing cost/benefit analysis, small business impact, federalism impact, or any other missing analysis. For example, after the MacIntosh subcommittee insisted that the Department of Labor prepare a missing RIA for its `Baby UI' rule, Labor finally prepared one. Here is basically in a nutshell, Mr. Speaker, how S. 1198 works. A chairman or a ranking member of a committee of jurisdiction may request that GAO submit an independent evaluation to the committee of a major proposed or final rule within 180 days. GAO's analysis shall include an evaluation of the potential benefits of the rule, potential costs of the rule, alternative approaches in the rulemaking record, and various impact analyses. Congress currently has two opportunities to review agency regulatory actions. Under the Administrative Procedures Act, Congress can comment on an agency proposed and interim rules during the public comment period. The APA's fairness provisions require that all members of the public, including Congress, be given an equal opportunity to comment. Late congressional comments cannot be considered by an agency unless all other late comments are equally considered. Agencies can ignore comments filed by Congress after the end of the public comment period, as the Department of Labor did during its Baby UI period in its rule. Therefore, since GAO cannot be given more time than other members of the public to comment, GAO should complete its review of agency regulatory proposals during the public comment period. Under the CRA, Congress can disapprove an agency final rule after it is promulgated but before it is effective. Unfortunately, Congress has been unable to carry out its responsibility under the CRA because it neither has had all of the information it needs to carefully evaluate agency regulatory proposals nor sufficient staff for this function. In fact, since the March 1996 enactment of the CRA, there has been no completed congressional resolutions of disapproval. To assume oversight responsibility for Federal regulations, Congress needs to be armed with an independent evaluation, that is why we are doing this. What is needed is an analysis of legislative history to see if there is a nondelegation problem, such as in the Food and Drug Administration's proposed rule to regulate tobacco products, which was struck by the Supreme Court in FDA v. Brown & Williamson, or backdoor legislating, such as in the Department of Labor's Baby UI rule, which provides paid family leave to small business employees, even though Congress in the Family and Medical Leave Act said no to paid family leave and any coverage of small businesses. Sometimes the quickest or the only way to find that an agency has ignored a congressional intent or failed to consider less costly or nonregulatory alternatives, is to examine nonagency or public data and analysis. It is for that reason that, under H.R. 4744, GAO would be required to consult the public's data in the course of evaluating agency's rules. Although S.1198 does not require GAO to review public data, it does not forbid it. And I bring this up, because some hope that S.1198 implicitly contains a gag order, forbidding GAO to consult any analyses of data except those supplied by the agency. That is an incorrect reading, however, and the purpose and hope of this bill is to enable Congress to comment knowledgeably about agency rules from the standpoint of a truly independent evaluation of those rules, including the consumption and evaluation of public outside data. Instructed by GAO's independent evaluations, Congress then will be better equipped to review final agency rules under the CRA. More importantly, Congress will be better equipped to submit timely and knowledgeable comments on proposed rules during the public period. Some CORA foes hope that all GAO analyses of proposed rules will be untimely and, therefore, have no effect on the substance of rules, which I am confident that GAO will want to please, rather than annoy its customers, those of us serving in Congress and will help submit timely regulatory analysis. Thus, even though this bill is a far cry from the original Kelly idea of a CORA legislation, this legislation, S.1198, will increase the transparency of important regulatory decisions. It will promote effective congressional oversight, and it will increase the accountability of Congress. The best government is a government that is accountable to the people. For America to have an accountable regulatory system, the peoples elected representatives must participate in and take responsibility for the rules promulgated under the laws Congress passes and by the executive branch agencies, that is why I urge my colleagues to support this meaningful step. Mr. Speaker, I went through this exhaustive legislative history on this bill because I think it is important that those who are researching and realizing the debate here in Congress know the intent as we pass this bill. S. 1198, the `Truth in Regulating Act of 2000,' is a bi-partisan, good government bill. It establishes a regulatory analysis function within the General Accounting Office (GAO). This function is intended to enhance Congressional responsibility for regulatory decisions developed under the laws Congress enacts. It is the product of the leadership over the last few years of Small Business Subcommittee Chairwoman on Regulatory Reform and Paperwork Reduction, Sue Kelly. The most basic reason for supporting this bill is Constitutional: Just as Congress needs a Congressional Budget Office (CBO) to check and balance the Executive Branch in the budget process, so it needs an analytic capability to check and balance the Executive Branch in the regulatory process. GAO is a logical location since it already has some regulatory review responsibilities under the Congressional Review Act (CRA). Article I, Section 1 of the U.S. Constitution vests all legislative powers in the U.S. Congress. While Congress may not delegate its legislative functions, it routinely authorizes Executive Branch agencies to issue rules that implement laws pass by Congress. Congress has become increasingly concerned about its responsibility to oversee agency rulemaking, especially due to the extensive costs and impacts of Federal rules. During the 105th Congress, the House Government Reform Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, chaired by David McIntosh, held a hearing on Mrs. Kelly's earlier regulatory analysis bill (H.R. 1704), which would sought to establish a new, freestanding Congressional agency. The Subcommittee then marked up and reported her bill (H. Rept. 105-441, Part 2). H.R. 1704 called for the establishment of a new Legislative Branch Congressional Office of Regulatory Analysis (CORA) to analyze all major rules and report to Congress on potential costs, benefits, and alternative approaches that could achieve the same regulatory goals at lower costs. This agency was intended to aid Congress in analyzing Federal regulations. The Committee Report stated, `Congress needs the expertise that CORA would provide to carry out its duty under the CRA. Currently, Congress does not have the information it needs to carefully evaluate regulations. The only analyses it has to rely on are those provided by the agencies which promulgate the rules. There is no official, third-party analysis of new regulations' (p. 5). Unfortunately, CORA supporters in the 105th Congress could not overcome the resistance of the defenders of the regulatory status quo. Opponents argued that creating a new Congressional agency would be fiscally irresponsible. By this logic, Congress ought to abolish CBO, as an even more heroic demonstration of fiscal conservatism in action. Of course, most of us recognize that dismantling CBO, however penny wise, would be pound foolish. In the 106th Congress, Government Reform Subcommittee Chairman David McIntosh and Small Business Subcommittee Chairwoman Sue Kelly, seeking to accommodate the prejudice against a freestanding agency, introduced bills (H.R. 3521 and H.R. 3669, respectively) to establish a CORA function within GAO, which is an existing Legislative Branch agency. McIntosh and Kelly introduced their bills in January and February 2000. On May 9th, the Senate passed its own regulatory analysis legislation, S. 1198, by unanimous consent. Like the McIntosh and Kelly bills, the Senate legislation would also establish a regulatory analysis function within GAO. During the 106th Congress, the Government Reform Committee did not hold a hearing specifically on one of the CORA bills. However, the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs did hold a June 14th hearing, entitled `Does Congress Delegate Too Much Power to Agencies and What Should be Done About It?' Witnesses at the hearing included Senator Sam Brownback, Representative J.D. Hayworth, former Administrator of the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs Dr. Wendy Lee Gramm, former OMB General Counsel Alan Raul, and New York Law School Professor David Schoenbrod. Witnesses stressed that Congress needs its own, in-house, regulatory analysis capability so that Members could especially provide timely comment on proposed rules, while there is still an opportunity to influence the cost, scope and content of the final agency action. Witnesses stated that a regulatory analysis function should: (a) take into account Congressional legislative intent; (b) examine other, less costly regulatory and nonregulatory alternative approaches besides those in an agency proposal; and (c) identify additional, non-agency sources of data on benefits, costs, and impacts of an agency's proposal. Dr. Gramm testified that, `there's clearly a need for more and better analysis that is independent of the agency writing the regulation . . . In my view, Congress cannot carry out its responsibilities effectively without such analysis.' She continued by recommending, `a shadow OIRA . . . to perform independent, high-quality analysis of agency regulations at the proposal stage . . . whether or not the agency has considered the different alternatives, what might be other alternatives . . . I would suggest that all this analysis be done at the proposal stage so that this information can be put into the rulemaking record.' On June 26th, Chairwoman Kelly and Chairman McIntosh introduced H.R. 4744, which included several needed improvements to S. 1198, along the lines suggested by the witnesses at the June 14th hearing. For example, whereas S. 1198 merely permits GAO to assist Congress in submitting timely comments on proposed regulations during the public comment period, H.R. 4744 would require GAO to provide such assistance. This was a critical improvement, because it is only by commenting on proposed rules during the public comment period that Congress has any real opportunity to influence the cost, scope, and content of regulation. In addition, unlike S. 1198, H.R. 4744 would require GAO to review not only the agency's data but also the public's data to assure a more balanced evaluation, analyze not only rules costing $100 million or more but also rules with a significant impact on small businesses, and examine whether alternatives not considered by the agencies might achieve the same goal in a more cost-effective manner or with greater net benefits. On June 29th, the Government Reform Committee favorably reported H.R. 4744, with a thorough discussion of issues in its accompanying report (H. Rept. 106-772). On July 24th, Chairmen Kelly and McIntosh with Messrs. Condit and Turner introduced H.R. 4924. This bill included only a few of H.R. 4744's improvements to S. 1198: (a) inclusion, within the scope of GAO's purview, of agency rules with a significant impact on small businesses; and (b) a directive to GAO to submit its independent evaluation of proposed rules within the public comment period, albeit only when doing so is `practicable.' House Report 106-772 explains the basis for these improvements. H.R. 4924 was, in my judgment, inferior to H.R. 4744, which was itself a watered down version of the complete reform needed to implement Congress' Constitutional responsibility for regulatory oversight. But, it was a step in the right direction. On July 29th, the House passed H.R. 4924. Unfortunately, the Senate has not yet considered H.R. 4924. Since we are at the close of the 106th Congress, we now urge the House's favorable consideration of S. 1198. S. 1198 does not require or expect GAO to conduct any new Regulatory Impact Analyses (RIAs), cost-benefit analyses, or other impact analyses. However, GAO's independent evaluation should lead the agencies to prepare any missing cost/benefit, small business impact, federalism impact, or any other missing analysis. For example, after the McIntosh Subcommittee insisted that the Department of Labor prepare a missing RIA for its Birth and Adoption Unemployment Compensation (`Baby UI') proposed rule, Labor finally prepared one. Here's how S. 1198 works. The Chairman or Ranking Member of a Committee of jurisdiction may request that GAO submit an independent evaluation to the Committee of a major proposed or final rule within 180 days. GAO's analysis shall include an evaluation of the potential benefits of the rule, the potential costs of the rule, alternative approaches in the rulemaking record, and the various impact analyses. Congress currently has two opportunities to review agency regulatory actions. Under the Administrative Procedure Act (APA), Congress can comment on agency proposed and interim rules during the public comment period. The APA's fairness provisions require that all members of the public, including Congress, be given an equal opportunity to comment. Late Congressional comments cannot be considered by the agency unless all other late public comments are equally considered. Agencies can ignore comments filed by Congress after the end of the public comment period, as the Department of Labor did after its proposed `Baby UI' rule. Therefore, since GAO cannot be given more time than other members of the public to comment, GAO should complete its review of agency regulatory proposals during the public comment period. Under the CRA, Congress can disapprove an agency final rule after it is promulgated but before it is effective. Unfortunately, Congress has been unable to fully carry out its responsibility under the CRA because it has neither all of the information it needs to carefully evaluate agency regulatory proposals nor sufficient staff for this function. In fact, since the March 1996 enactment of the CRA, there has been no completed Congressional resolutions of disapproval. In recent years, various statutes (such as the Unfunded Mandates Reform Act of 1995 and the Small Business Regulatory Enforcement Fairness Act of 1996) and executive orders (such as President Reagan's 1981 Executive Order 12291, `Federal Regulation,' and President Clinton's 1993 Executive Order 12866, `Regulatory Planning and Review') have mandated that Executive Branch agencies conduct extensive regulatory analyses, especially for economically significant rules having a $100 million-or-more effect on the economy or a significant impact on small businesses. Congress, however, does not have the analytical capability to independently and fairly evaluate these analyses. To assume oversight responsibility for Federal regulations, Congress needs to be armed with an independent evaluation. What is needed is an analysis of legislative history to see if there is a non-delegation problem, such as in Food and Drug Administration's proposed rule to regulate tobacco products, which was struck down by the Supreme Court in FDA v. Brown & Williamson, or backdoor legislating, such as in the Department of Labor's `Baby UI' rule, which provides paid family leave to small business employees, even though Congress in the Family and Medical Leave Act said no to paid family leave and any coverage of small businesses. Sometimes the quickest (or only) way to find out that an agency has ignored Congressional intent or failed to consider less costly or non-regularly alternatives, is to examine non-agency (i.e., `public') data and analyses. It is for that reason that, under H.R. 4744, GAO would be required to consult the public's data in the course of evaluating agency rules. Although S. 1198 does not require GAO to review public data, neither does it forbid or preclude GAO from doing so. I bring this up, because some hope that S. 1198 implicitly contains a gag order, forbidding GAO to consult any analyses or data except those supplied by the agency to be reviewed. This reading of S. 1198 would defeat a key purpose of the bill, which is to enable Congress to comment knowledgeably about agency rules from the standpoint of a truly independent evaluation of those rules. Instructed by GAO's independent evaluations, Congress will be better equipped to review final agency rules under the CRA. More importantly, Congress will be better equipped to submit timely and knowledgeable comments on proposed rules during the public comment period. Some CORA foes hope that all GAO analyses of proposed rules will be untimely and, therefore, have no effect on the substance of rules. I am confident that GAO will want to please rather than annoy its customers, and will not fail to help Members of Congress submit timely comments on regulatory proposals. Thus, even though a far cry from the original idea of an independent CORA agency, and although inferior to the Kelly-McIntosh bill reported by the Government Reform Committee, S. 1198 will increase the transparency of important regulatory decision, promote effective Congressional oversight, and increase the accountability of Congress. The best government is a government accountable to the people. For America to have an accountable regulatory system, the people's elected representatives must participate in, and take responsibility for, the rules promulgated under the laws Congress passes. S. 1198 is a meaningful step towards Congress' meeting its regulatory oversight responsibility. Mr. Speaker, I reserve the balance of my time.