H.R. 10: Regulations From the Executive in Need of Scrutiny (REINS) Act of 2011

H.R. 10

Regulations From the Executive in Need of Scrutiny (REINS) Act of 2011

Date
December 7, 2011 (112th Congress, 1st Session)

Staff Contact
Sarah Makin

Floor Situation

On Tuesday, December 6, 2011, the House is scheduled to begin consideration of H.R. 10, the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011.  The bill was introduced by Rep. Geoff Davis (R-KY) on January 20, 2011, and referred to the Committee on the Judiciary.  On October 25, 2011, a mark-up was held and the bill was reported, as amended, by a vote of 22-14. 

H.R. 10 will be considered under a rule that provides one hour of general debate equally divided and controlled by the chair and ranking minority member of the Committee on the Judiciary.  Additionally, the rule makes in order seven amendments, each debatable for ten minutes, and provides for one motion to recommit with or without instructions.  Under the rule, the bill will be considered as modified by an amendment offered by Rep. Paul Ryan (R-WI).   The amendment would ensure that any costs associated with approving or disapproving rules authorized by budget-related legislation are properly accounted for under the Congressional Budget Process.

Bill Summary

Congressional Review

H.R. 10 would increase accountability for and transparency in the federal regulatory process.  According to the legislation, Section 1 of article I of the United States Constitution grants all legislative powers to Congress.  Over time, Congress has excessively delegated its constitutional charge while failing to conduct appropriate oversight and retain accountability for the content of the laws it passes.  By requiring a vote in Congress, the REINS Act would result in more carefully drafted and detailed legislation, an improved regulatory process, and a legislative branch that is truly accountable to the American people for the laws imposed upon them.

The bill would require that before a rule may take effect, the federal agency promulgating the rule must submit to Congress and the Comptroller General a report containing the following:

  • A copy of the rule;
  • A concise general statement relating to 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;
  • 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
  • The proposed effective date of the rule.

H.R. 10 would require that when the report is submitted, the federal agency promulgating the rule must also submit to the Comptroller General and Congress the following:

  • A complete copy of the cost-benefit analysis of the rule, if any;
  • The agency's actions relating to the development of the rule;
  • The agency's actions related to the Unfunded Mandates Reform Act of 1995; and
  • Any other relevant information or requirements under any other Act and any relevant Executive orders.

The bill would require that copies of the report be sent to the chairman and ranking member of each standing committee with jurisdiction under the rules of the House or the Senate. 

H.R. 10 would require the Comptroller General to provide a report on each major rule to the committees of jurisdiction by the end of 15 calendar days after the submission or publication date of the rule.  The report would be required to include an assessment of the agency’s compliance with all procedural steps (noted above).  Furthermore, the bill would require that federal agencies cooperate with the Comptroller General by providing information relevant to the report.

The bill would require that a major rule take effect only after the enactment of a joint resolution of approval by Congress.  A nonmajor rule would take effect so long as Congress does not disapprove of the rule.  The bill would prohibit a joint resolution of approval relating to a major rule from being considered after a 70 day period (i.e. if a joint resolution is not enacted into law by the end of 70 session days or legislative days, beginning on the date the report is received by Congress, then the rule described in that resolution would be deemed not approved and would not take effect). 

H.R. 10 would allow a major rule to take effect for one 90-calendar-day period if the President makes a determination and submits written notice of such to the Congress.  Such a determination can only be made by the President by executive order and if the major rule is necessary because of an imminent threat to health or safety or other emergency, necessary for the enforcement of criminal laws, necessary for national security, or is issued pursuant to any statute implementing an international trade agreement. 

Congressional Approval Procedure for Major Rules

H.R. 10 would require that a joint resolution, introduced by the majority leader (or his designee) or minority leader (or his designee), be introduced within three legislative days after the Congress receives the report in order to approve a major rule.  The bill would require the same from the Senate majority leader and/or minority leader. 

H.R. 10 would require that each joint resolution be referred to the committees in both the House and the Senate with jurisdiction to report a bill to amend the provision of law under which the rule is issued. 

Senate Consideration:  The bill would require that the if the relevant Senate committees do not report the resolution at the end of 15 session days after its introduction, then the bill would be automatically discharged from further consideration and be placed on the Senate calendar.  The bill would require that a vote on final passage of the resolution take place on or before the close of the 15th session day after the resolution is reported by the committees to which it was referred, or after such committees have been discharged from further consideration of the resolution.  Furthermore, in the Senate, when the committees to which a joint resolution are referred have reported, or when the committees are discharged from further consideration of a joint resolution, 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 would not be 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 would not be in order.  If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution would remain the unfinished business of the Senate until disposed of.

The bill would require that in the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection to it, would be limited to no more than two hours, equally divided between those favoring and those opposing the joint resolution.  A motion to further limit debate would not be debatable.  The bill would prohibit 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.  Immediately following the conclusion of the debate on a joint resolution, and a single quorum call, the vote on final passage of the joint resolution would be required to occur.  H.R. 10 would require that 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 would be decided without debate.

House Consideration:  H.R. 10 would require that in the House, if the committees to which a joint resolution are referred have not reported it before 15 legislative days after its introduction, then the committees would be automatically discharged from further consideration of the resolution and it would be placed on the appropriate calendar.  The bill would require that a vote on final passage of the resolution be taken on or before the close of the 15th legislative day after the resolution is reported by the committees to which it was referred, or after such committees have been discharged from further consideration of the resolution.  The bill would state that a motion in the House to proceed to the consideration of a resolution be privileged and not debatable, and an amendment to the motion would not be in order, nor would it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

H.R. 10 would require that debate in the House on the resolution be limited to no more than two hours, equally divided between those favoring and those opposing the resolution.  A motion to further limit debate would not be debatable.  Furthermore, no amendment to, or motion to recommit, the resolution would be made in order.  Motions to postpone the consideration of the resolution, and motions to proceed to the consideration of other business, would be decided without debate.  All appeals from the decisions of the Chair relating to the application of the Rules of the House to the procedure relating to a resolution would be decided without debate. 

The bill would state that these new procedures become part of the rulemaking power of the House and Senate, and deemed as such, part of the rules of each House.  H.R. 10 would not alter the constitutional right of either the House or Senate to change the rules at any time, in the same manner, and to the extent as in the case of any other rule of the House.

Congressional Disapproval Procedure for Nonmajor Rules

H.R. 10 would require that within a specified period of time, both the House and the Senate would be required to introduce a resolution that would read, “That Congress disapproves the nonmajor rule submitted by the <appropriate agency> relating to <federal law being amended>, and such rule shall have no force or effect.”   Such a resolution would be referred to the committees in both the House and Senate with jurisdiction. 

Senate Consideration:  H.R. 10 would state that if the committee to which the resolution is referred to does not report it at the end of 15 session days after its introduction, then the committee may be discharged from further consideration of the resolution upon a petition supported in writing by 30 Members of the Senate, and the resolution will be placed on the Senate calendar.  According to the bill, if the committee does report the resolution, or has discharged it, then the resolution is at any time in order for a motion to proceed to the consideration of the joint resolution, and all points of order against the joint resolution would be waived.  The motion would not be 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 would also not be in order.  If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution would remain the unfinished business of the Senate until disposed of.

Furthermore, H.R. 10 would require that debate on the joint resolution, and on all debatable motions and appeals be limited to no more than 10 hours, divided equally between those favoring and those opposing the joint resolution.  A motion to further limit debate would be 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 would not be in order.  Immediately following the conclusion of the debate on a joint resolution, and a single quorum call at the conclusion of the debate, the vote on final passage of the joint resolution would occur.  Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure would be decided without debate.

House Consideration:   H.R. 10 states that if, before the passage by one House of a joint resolution of that House , that House receives from the other House a joint resolution, then the following procedures would apply:

1.  The joint resolution of the other House shall not be referred to a committee;

2.  With respect to a joint resolution of the House receiving the joint resolution, the procedure in that House would be the same as if no joint resolution had been received from the other House; but the vote on final passage would be on the joint resolution of the other House.

Definitions

H.R. 10 would define “major rule” to mean 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 the following:

  • An annual effect on the economy of $100,000,000 or more;
  • A major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or
  • Significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

 The bill would define “nonmajor rule” to mean any rule that is not a major rule. 

Judicial Review

H.R. 10 would state that no determination, finding, action, or omission under the bill would be subject to judicial review.  However, a court may determine whether a federal agency has completed the necessary requirements for a rule to take effect.  The bill would state that the enactment of a joint resolution of approval would not be interpreted to serve as a grant or modification of statutory authority by Congress for the promulgation of a rule, would not extinguish or affect any claim, whether substantive or procedural, against any alleged defect in a rule, and would 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.

Exemption for Monetary Policy

The bill would exempt rules that concern monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or the Federal Open Market Committee. 

Effective Date of Certain Rules

H.R. 10 would state that 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 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, would take effect at such time as the federal agency promulgating the rule determines.

Background

Under current law, Congress can prevent a rule from taking effect by enacting a joint resolution of disapproval.  H.R. 10 would require enactment of a joint resolution of approval prior to any major rule taking effect.

According to the House Committee on the Judiciary House Report 112-278, excessive federal regulation is a de facto tax on employers and consumers that stifles job creation, hampers innovation, and postpones investment in the economy.  When the rules constantly change, small businesses cannot properly plan for the future.  This bill would work to create an environment where job creators can flourish, rather than flounder.

The existing burden of regulation has already become a barrier to economic growth and job creation.  As of 2008, Federal regulations cost our economy $1.75 trillion each year, as estimated by the Small Business Administration.  To that burden, the Administration seeks to add billions upon billions more.

By its own admission, the Administration is preparing myriad regulations, each costing the economy over $1 billion annually.  The Administration's 2011 regulatory agenda calls for over 200 new major rules.  No one knows when this flood will end.  Numerous additional rules are to come under both the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Patient Protection and Affordable Care Act.

Currently, Congress has two options with which to deal with excessive or overreaching Federal regulations—pass a new law or pass a joint resolution of disapproval as set out in the Congressional Review Act (CRA).  Since the enactment of the CRA in 1996, the Executive branch has promulgated more than 50,000 rules, including more than 1,000 major rules.  Only one rule, however, has been overturned through the CRA disapproval process—the 2001 ergonomics standard promulgated by the Occupational Safety and Health Administration (OSHA) during the final days of the prior Administration.

While this exemplifies how CRA procedures can be used to prevent a rule from coming into effect, it also highlights a major deficiency in the CRA.  Specifically, if Congress attempts to use the CRA to disapprove of a rule promulgated under a sitting President, the threshold for enactment is actually much higher than the simple majority required for passage of a resolution of disapproval.  Because the President retains the power to veto a resolution of disapproval, Congress would need to have the support of a two-thirds majority in each House to ensure that a rule will not come into effect.

Accordingly, a new mechanism is necessary in order to preserve the ability of a majority of the Members of Congress to affect agency regulatory decisions.  Only by providing for the approval of major regulations on the front end can Congress regain its rightful role as the legislative body of the government, rather than allowing unelected officials to continue exercising those powers. The REINS act provides just such a mechanism.

Cost

According to the Congressional Budget Office (CBO), about 80 major rules have been issued per year, on average, over the past five years.  Major rules vary greatly in their nature and scope.  CBO and the staff of the Joint Committee on Taxation (JCT) cannot determine the budgetary effects of preventing all future major rules from going into effect, but they expect that enacting H.R. 10 would have effects on both direct spending and revenues.  Pay-as-you-go procedures apply because enacting the legislation would affect direct spending and revenues.  CBO expects that implementing H.R. 10 would not have any significant impact on spending subject to appropriation.  CBO expects that H.R. 10 would impose no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA).

Amendments

Amendment No. 1—Rep. Sessions (R-TX):  This amendment would require the agency submitting the report on a proposed federal rule to include an assessment, as part of the cost-benefit analysis submitted to the Comptroller General and each House of Congress, of anticipated jobs gained or lost as a result of implementation, and to specify whether those jobs will come from the public or private sector.

Amendment No. 2—Reps. Johnson (D-GA), Jackson Lee (D-TX), Hastings (D-FL):  This amendment would exempt any rule that the Office of Management and Budget determines would result in net job creation.

Amendment No. 3—Rep. Schrader (D-OR):  This amendment would require a cost benefit analysis to be included with reports to Congress and require agencies to submit criteria for cost benefit analyses to Congress within 12 months of enactment.

Amendment No. 4—Rep. McKinley (R-WV):  This amendment would reduce the annual effect on the economy of the term “major rule” from $100,000,000 or more to $50,000,000 or more.

Amendment No. 5—Rep. McCarthy (D-NY):  This amendment would exempt any rule relating to safely of food, workplace safety, air quality, consumer product safety, or water quality. 

Amendment No. 6—Rep. Jackson Lee (D-TX):  This amendment would exempt all rules promulgated by the Department of Homeland Security.

Amendment No. 7—Rep. Moore (D-WI):  This amendment would exempt any rule relating to veterans or veterans affairs.