049-006

2d Session

109-652

--TRUTH IN REGULATING ACT EXTENSION

[To accompany H.R. 1167]

[Including cost estimate of the Congressional Budget Office]

The Committee on Government Reform, to whom was referred the bill (H.R. 1167) to amend the Truth in Regulating Act to make permanent the pilot project for the report on rules, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass.

The amendments are as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. AMENDMENT TO TRUTH IN REGULATING ACT TO AUTHORIZE ADDITIONAL 3-YEAR PERIOD FOR PILOT PROJECT.

(a) Additional 3-Year Period for Pilot Project- Section 6(b) of the Truth in Regulating Act of 2000 (Public Law 106-312; 5 U.S.C. 801 note) is amended--

(1) by striking `The pilot project under this Act' and inserting the following:

`(1) INITIAL 3 YEARS- The pilot project under this Act'; and

(2) by inserting at the end the following:

`(2) ADDITIONAL 3 YEARS- The pilot project under this Act shall continue for an additional period of 3 years, beginning October 1, 2006, and ending September 30, 2009, if in each fiscal year a specific annual appropriation not less than $5,000,000 shall have been made for the pilot project.'.

(b) Authorization- Section 5 of such Act is amended by inserting before the period at the end of the text the following: `, and $5,000,000 for each of fiscal years 2007, 2008, and 2009'.

(c) Technical Amendment- Section 6(c) of such Act is amended by inserting after `3-year period' the following: `under subsection (b)(1)'.

Amend the title so as to read:

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

The purposes of the Truth in Regulating Act Amendments are to make permanent the pilot program for the report on rules from the Truth in Regulating Act of 2000 (P.L. 106-312). The Truth in Regulating Act of 2000 (TIRA) was proposed to increase the transparency of important regulatory decisions; promote effective Congressional oversight to ensure that agency rules fulfill statutory requirements in an efficient, effective, and fair manner; and increase the accountability of Congress and the agencies to the people they serve. The bill would have established a Congressional Office of Regulatory Analysis (CORA) function within the Government Accountability Office (GAO). This regulatory analysis capability was intended to enhance Congressional responsibility for regulatory decisions developed under the laws Congress enacts. The most basic reason for TIRA was to restore balance between the branches of government. 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.

BACKGROUND AND NEED FOR LEGISLATION

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 passed by Congress. Congress has become increasingly concerned about its responsibility to oversee agency rulemaking, especially due to the extensive costs, benefits and impacts of Federal rules.

The burden of Federal regulations on the American public continues to grow. In a report authored under contract to the U.S. Small Business Administration's Office of Advocacy, Professor Mark Crain of Lafayette College, projected total off-budget regulatory costs for 2005 to be $1.1 trillion. This was an update of studies previously performed in Hopkins (1995) and Crain and Hopkins (2001).

In 2005 alone, the Federal Register published 73,780 pages, a significant increase from the time of the original Truth in Regulating Act's passage. 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. Unfortunately, Congress does not have the analytical capability to independently and fairly evaluate these 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. Under the Congressional Review Act (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. Therefore, since the March 1996 enactment of the CRA, there has been only one successful Congressional resolution of disapproval.

To assume oversight responsibility for Federal regulations, Congress needs to be armed with an independent evaluation of more than just the agency's regulatory documents, including agency-identified alternatives and the agency's costs and benefits data. What is needed additionally is an analysis of legislative history to see if there is a non-delegation problem. Also, Congress needs an identification of non-regulatory and lower-cost alternatives neglected by the agency.

During the 105th Congress, multiple hearings were held by the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs. In the 105th, the Committee favorably reported H.R. 1704, the `Congressional Office of Regulatory Analysis Creation Act' (Rept. 105-441, Part 2). This bill, introduced by Small Business Subcommittee Chairwoman Sue Kelly on May 22, 1997, called for the establishment of a new Legislative Branch Congressional Office of Regulatory Analysis (CORA) agency to, among several duties, 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.

In January and February 2000, Government Reform Subcommittee Chairman David McIntosh and Small Business Subcommittee Chairwoman Kelly introduced bills (H.R. 3521 and H.R. 3669, respectively) which established a CORA function within GAO, which is an existing Legislative Branch agency. These bills and H.R. 4744 respond to the main objection of the earlier bill in the 105th Congress by establishing a CORA function in an existing Legislative Branch agency instead of creating a new agency. GAO is the logical location within the Legislative Branch since it already has some responsibilities under the CRA. On May 10, 2000, the Senate passed S. 1198, the `Truth in Regulating Act of 2000,' by unanimous consent. It also places the CORA function within GAO. Multiple hearings were held and witnesses agreed that Congress needs to assume more responsibility for regulations, especially for regulatory proposals without an explicit delegation of regulatory authority from Congress.

On June 26, 2000, Chairwoman Kelly and Chairman McIntosh introduced H.R. 4744, the `Truth in Regulating Act of 2000,' which included several needed improvements to the

Senate-passed S. 1198. H.R. 4744 and S. 1198 share nearly identical purposes and very similar provisions. However, H.R. 4744 included some needed improvements, such as: (a) providing for timely Congressional comment on agency proposed rules during the public comment period, while there is still an opportunity to influence the cost, scope and content of the rule; (b) requiring GAO to review not only the agency's data but also the public's data to assure a more complete, unbiased and balanced evaluation; (c) including not only rules having a $100 million or more effect on the economy but also rules with a significant impact on small businesses; (d) clarifying that GAO's evaluation of alternative approaches should include alternatives that achieve the same goal in a more cost-effective manner or that could provide greater net benefits; and, (e) changing procedures so that the bipartisan leadership of Congress instead of GAO determines the priority for GAO's independent evaluations, with highest priority to proposed and interim rules. S. 1198 included a pilot project approach to test the effectiveness of a CORA function in GAO; in contrast, H.R. 4744 included a sunset provision approach. The approach of S. 1198 ultimately prevailed.

On October 3, 2000, Congress enacted the Truth in Regulating Act (TIRA) which was the Senate enacted version S. 1198. The President signed the bill on October 17, 2000 and it became Public Law 106-312, which was intended to improve the quality of the information that Congress receives about certain rules. Under the final version of TIRA, the chairman or ranking member of any committee of jurisdiction could have requested that GAO conduct an in-depth review of an agency's estimate of a proposed or final economically significant rule's costs and benefits, an analysis of the alternatives that the agency considered, and the agency's compliance with relevant procedural and analytical requirements. Federal agencies were required to `promptly cooperate' with GAO in carrying out the act. TIRA established a three-year pilot project (starting in January 2001) that became effective upon the specific annual appropriation to GAO of $5.2 million (or the prorated portion thereof). Congress never provided that appropriation, though, so the three-year pilot project ended in January 2004 without being activated.

In the 108th Congress, Subcommittee on Energy, Natural Resources, and Regulatory Affairs Chairman Doug Ose introduced the Paperwork and Regulatory Improvements Act (H.R. 2432). The act included a provision to make permanent the pilot project on regulatory reports in the GAO. The bill passed the House on May 18, 2004. The legislation was not taken up in the Senate before Congress adjourned.

In the 109th Congress, Representative Sue Kelly introduced the Truth in Regulating Act Amendments (H.R. 1167) on March 8, 2005 to make permanent the pilot project that had expired in January 2004. Chairwoman Candice Miller's Subcommittee on Regulatory Affairs held a hearing on July 27, 2005 entitled, `Regulatory Reform: Are Regulations Hindering Our Competitiveness?' Representative Sue Kelly testified at the hearing and discussed the continued need for her legislation. She specifically stressed the need for Congress to be able to independently evaluate the impacts of regulation on small businesses which are disproportionately burdened with the cost of regulation.

The Truth in Regulating Act Amendments will make permanent this ability that Congress needs to fulfill its responsibility to oversee the laws it has enacted.

LEGISLATIVE HISTORY

The Truth in Regulating Act Amendments (H.R. 1167) was introduced by Representative Sue Kelly on March 8, 2005. The Subcommittee on Regulatory Affairs held a hearing on several legislative proposals for regulatory reform including H.R. 1167 on July 27, 2005. Witnesses including Representative Kelly expressed the continued need for a regulatory review function for the Congress within GAO. The legislation would make permanent the authority for that program that had yet to be implemented since its passing in 2000 (P.L. 106-312). The law had authorized the pilot program's existence until January 2004.

On June 8, 2006, the Committee on Government Reform held a mark up of the Truth in Regulating Act Amendments (H.R. 1167). Ranking Member Henry Waxman introduced an amendment in the nature of a substitute. The amendment would strike the permanent authority for the program and instead extend its authority for a 3-year period to begin October 1, 2006 and end September 30, 2009. It would also delete a section of the bill that would have allowed for the program to be immediately implemented by the GAO instead of being contingent on specific appropriations being made available. The amendment passed by voice vote with no nays. The Committee, with a quorum present, reported the bill favorably by rollcall vote, unanimously.

SECTION-BY-SECTION

An amendment in the nature of a substitute was offered and accepted. The amended legislation read as the following:

Section 1. Amendment to Truth in Regulating Act to authorize additional 3-year period for pilot project

Section 1(a) amends the Truth in Regulating Act of 2000 to extend of the pilot project for a report on rules by the Government Accountability Office for an additional 3-year period beginning October 1, 2006 and ending September 30, 2009.

Section 1(b) amends the Truth in Regulating Act of 2000 to authorize appropriations for the office within the Government Accountability Office at $5,000,000 for fiscal years 2007-2009.

Section 1(c) makes technical amendments.

EXPLANATION OF AMENDMENTS

The amendment in the nature of a substitute eliminated the permanent authorization for a report on rules by the Government Accountability Office (GAO). Instead, it extended the pilot program for a 3-year period. It also continued to make the program contingent on a specific appropriation for the GAO at an inflation adjusted rate of $5,000,000 per fiscal year. The version before the amendment would have required GAO to begin operations

of the program without any new funds. GAO submitted comments regarding the financial strain this program would cause without additional funding. Other operations would have to be scaled back to accommodate it.

COMMITTEE CONSIDERATION

On June 8, 2006, the Committee met in open session and ordered reported favorably the bill, H.R. 1167, as amended, by voice vote, a quorum being present.

ROLLCALL VOTES

There were no rollcall votes on this legislation.

Insert offset folio 9 here HR652.001

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APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104-1 requires a description of the application of this bill to the legislative branch where the bill relates to the terms and conditions of employment or access to public services and accommodations. This bill amends the Truth in Regulating Act of 2000 to extend for three years the pilot project that permits a chairman or ranking member of a committee of jurisdiction of either House of Congress to request the Comptroller General to review a rule that is an economically significant rule (a rule with an annual effect on the economy of $100 million or more or that will adversely affect the country in a material way). As such this bill does not relate to employment or access to public services and accommodations.

Legislative branch employees and their families, to the extent that they are otherwise eligible for the benefits provided by this legislation, have equal access to its benefits.

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) of rule X of the Rules of the House of Representatives, the Committee's oversight findings and recommendations are reflected in the descriptive portions of this report.

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, the Committee's performance goals and objectives are reflected in the descriptive portions of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of Representatives, the Committee must include a statement citing the specific powers granted to Congress to enact the law proposed by H.R. 1167. Article I, Section 8, Clause 18 of the Constitution of the United States grants the Congress the power to enact this law.

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or authorize the establishment of an advisory committee within the definition of 5 U.S.C. App., Section 5(b).

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate Reform Act, P.L. 104-4) requires a statement whether the provisions of the reported include unfunded mandates. In compliance with this requirement the Committee has received a letter from the Congressional Budget Office included herein.

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out H.R. 1167. However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act.

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for H.R. 1167 from the Director of Congressional Budget Office:

Hon. TOM DAVIS,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed estimate for H.R. 1167, a bill to amend the Truth in Regulating Act to authorize an additional period of three years for the pilot project for the report on rules.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Matthew Pickford.

Sincerely,

Donald B. Marron,

Acting Director.

Enclosure.

H.R. 1167--A bill to amend the Truth in Regulating Act to authorize an additional period of three years for the pilot project for the report on rules

Summary: H.R. 1167 would amend the Truth in Regulating Act to authorize the appropriation of $5 million a year over the 2007-2009 period for a three-year extension of the Government Accountability Office's (GAO's) pilot project to evaluate final agency rules that are economically significant. No funds have been appropriated for the project, and the authority for the pilot project expired on January 15, 2004.

The rules subject to review by GAO would include those that could have an annual effect on the U.S. economy of at least $100 million or those that could adversely affect the economy, the environment, public health and safety, or state, local, or tribal governments. Each GAO analysis would include an evaluation of the potential costs and benefits of implementing a particular rule, alternative approaches for achieving the goal of the rule at a lower cost, and an evaluation of the regulatory impact analysis or other assessment performed by the agency issuing the rule.

Assuming appropriation of the authorized amounts and based on information from GAO, CBO estimates that implementing the pilot project would cost $5 million in 2007 and $15 million over the 2007-2011 period. Enacting the bill would not affect direct spending or revenues. H.R. 1167 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would not affect the budgets of state, local, or tribal governments.

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 1167 is shown in the following table. The bill would authorize the appropriation of $5 million a year over the 2007-2009 period for the pilot project. The costs of this legislation fall within budget function 800 (general government).

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                                             By fiscal year, in millions of dollars--                     

                                                                                 2007 2008 2009 2010 2011 

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CHANGES IN SPENDING SUBJECT TO APPROPRIATION                                                              

Authorization Level                                                                 5    5    5    0    0 

Estimated Outlays                                                                   5    5    5    0    0 

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Intergovernmental and private-sector impact: H.R. 1167 contains no intergovernmental or private-sector mandates as defined in UMRA and would not affect the budgets of state, local, or tribal governments.

Estimate prepared by: Federal Costs: Matthew Pickford. Impact on State, Local, and Tribal Governments: Sarah Puro. Impact on the Private Sector: Paige Piper/Bach.

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman):

TRUTH IN REGULATING ACT OF 2000

* * * * * * *

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the General Accounting Office to carry out this Act $5,200,000 for each of fiscal years 2000 through 2002, and $5,000,000 for each of fiscal years 2007, 2008, and 2009.

SEC. 6. EFFECTIVE DATE AND DURATION OF PILOT PROJECT.

(a) * * *

(b) DURATION OF PILOT PROJECT- [Struck out->][ The pilot project under this Act ][<-Struck out]

(1) INITIAL 3 YEARS- The pilot project under this Act shall continue for a period of 3 years, if in each fiscal year, or portion thereof included in that period, a specific annual appropriation not less than $5,200,000 or the pro-rated equivalent thereof shall have been made for the pilot project.

(2) ADDITIONAL 3 YEARS- The pilot project under this Act shall continue for an additional period of 3 years, beginning October 1, 2006, and ending September 30, 2009, if in each fiscal year a specific annual appropriation not less than $5,000,000 shall have been made for the pilot project.

(c) REPORT- Before the conclusion of the 3-year period under subsection (b)(1), the Comptroller General shall submit to Congress a report reviewing the effectiveness of the pilot project and recommending whether or not Congress should permanently authorize the pilot project.

ADDITIONAL VIEWS OF REPRESENTATIVE HENRY A. WAXMAN

I supported moving H.R. 1167, which sets up a system for the Government Accountability Office (GAO) to review agency rules, through the Committee, but I do continue to have questions about the bill's underlying purpose.

One key concern I have about the bill, as introduced, is its effect. The introduced bill could hurt GAO's ability to carry out its primary mission of answering to members of Congress. GAO currently does not have adequate resources to accept all of its current congressional requests. As it is, requests from members without ranking committee positions are at the bottom of the priority chain. Adding an unnecessary demand on GAO, as this bill seeks to do, could consume resources needed elsewhere.

This concern regarding effect was largely addressed by the Waxman amendment, which was unanimously passed in Committee. That amendment limits the program to a three year pilot and makes the authorization dependent on funding by Congress at $5 million each fiscal year. Because the Waxman amendment passed, I did not oppose H.R. 1167 in Committee.

However, I continue to have concerns about the purpose of this bill. The majority claims imposing this new requirement on GAO is necessary in order to allow Congress to oversee what the majority characterizes as increasingly burdensome federal regulation.

I am not in favor of burdensome regulations, and I believe targeted reviews can be helpful. But the major problem facing the regulatory system today is not overly burdensome regulation. Rather the two major problems with the regulatory process today are that: (1) science is shunted aside whenever it is politically inconvenient, as in the case of Plan B, and (2) regulatory policy decisions are too often made at the White House behind closed doors in meetings with industry, as in the case of the Administration's energy policy. This bill does nothing to deal with these issues.

Moreover, Congress already is fully capable of overseeing the development of regulations if it chooses to exercise its existing authority. Congress can call hearings, require agencies to testify, and hear from stakeholders, including the public. In addition, it can request agencies to develop additional information and fund independent studies by the National Academy of Sciences and other widely respected bodies, when it believes additional technical information is necessary.

HENRY A. WAXMAN.