June 26, 1998 | Backgrounder on Regulation
For far too long, federal agencies have blamed Congress for many of the burdensome regulations they have crafted, and this blame has often been justified. In 1996, to make itself accountable to the American public for all regulations of the federal government, the 104th Congress passed the Congressional Review Act (CRA) as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA).1 The CRA enables Congress to review each new rule and, if it deems it necessary, consider a joint resolution of disapproval.
The CRA's purpose and potential have yet to be fully realized, however, in large part because of insufficient congressional commitment to the Act's implementation. Congress has made no effort to put in place a structure, such as a coordinated committee review mechanism, or to set aside resources to help carry out the law. Consequently, many Members remain unaware of or ill-informed about the significant volume or types of rules that have been generated by federal agencies and sent to them for review in the two years since passage of the CRA.2
Congress has a constitutional responsibility to oversee the federal regulatory system; the only authority it has delegated to executive branch agencies is the authority to implement congressional statutory intent through federal regulations. Between April 1, 1996, when the U.S. General Accounting Office (GAO) began to track final rules under the CRA, and April 30, 1998, Congress received a total of 8,675 final rules for review. Congress did not disapprove a single one. Less than a handful of resolutions of disapproval were introduced,3 and not one came to the floor for a vote.
Moreover, 126 of these 8,675 rules are "major" rules, each of which would impose a cost of at least $100 million annually on the economy. Just one--the July 1997 Environmental Protection Agency (EPA) new final standards for particulate matter and ozone--involves agency-estimated costs of more than $60 billion.4 In addition, the other 125 major rules, which represent only 1 percent of all final rules generated during this two-year period, will cost American consumers, employers, employees, and taxpayers at least $12.5 billion. The costs imposed by the remaining rules more than likely will range from $0.00 to as high as $99 million each; it is impossible to be precise, however, because neither Congress nor the federal agencies track such estimates.
The sheer volume of final rules submitted to Congress under the CRA, and the limited amount of information about the costs of regulation, have spurred some Members to push Congress to reform itself to oversee the federal regulatory system more effectively. Both the House of Representatives and the Senate, for example, are poised to consider legislation that would inject an element of checks and balances into the regulatory process and break the virtual monopoly on regulatory analysis enjoyed by federal regulatory agencies.
Congress is often at a disadvantage when it seeks to challenge an agency's rulemaking. In many cases, the only information available to Members regarding a regulation is provided by the very agency that is trying to justify and promulgate the rule. Obviously, no federal agency with an interest in promulgating a rule is going to be inclined to maximize the dissemination of information that might raise concerns about its actions. Recent highly politicized debates over some costly new federal regulations suggest that Congress needs to ensure that it is given reliable and accurate information about major new regulatory policies as soon as possible, before such policies are finalized by agencies and generate significant public concern. More important, Congress needs to develop mechanisms that will facilitate a balanced and informed discussion of the merits of a rule as early as possible.
With this need in mind, on March 22, 1997, Representatives Sue Kelly (R-NY) and James Talent (R-MO) introduced H.R. 1704, the Congressional Office of Regulatory Analysis Creation Act, to establish a new Congressional Office of Regulatory Analysis (CORA). Senators Richard Shelby (R-AL) and Christopher Bond (R-MO) introduced the Senate companion bill, S. 1675, on February 25, 1998. CORA would be tasked with providing Congress with information and analyses about rules. It would function as the regulatory counterpart of the Congressional Budget Office (CBO), bringing together the existing regulatory functions of the CBO and the GAO to avoid unnecessary duplication of effort. The functions of the CBO and CORA would be the congressional counterparts of the existing budget and regulatory functions of the White House Office of Management and Budget (OMB).
The bills' sponsors proposed funding CORA at $5.2 million annually--the approximate level at which OMB's Office of Information and Regulatory Affairs (OIRA) is funded. By contrast, 50 regulatory agencies currently spend $14 billion annually on regulatory activity. In addition, the total direct costs of regulation have been estimated to range between $300 billion and $700 billion annually. Finding $5 million in a $1.7 trillion federal budget to reallocate to an office whose sole purpose is to save the government and taxpayers money, rather than spend it, should not be difficult.
Those who seek to establish an office of regulatory analysis for Congress understand the critical role such an office would play in checking regulatory excess and enhancing the nature of the debate in Washington about the merits of regulatory actions. Where this office is located--whether it is free-standing or part of the Congressional Budget Office--is less important than Congress's need to arm itself with a mechanism for obtaining fair and accurate information and analysis. By creating a regulatory balance between the legislative and executive branches, such an office would make regulatory decisions less subject to politically motivated rhetoric and more subject to debate that is based on fully informed, balanced, and analytic information on the merits of each rule.
Under the Congressional Review Act, no rule may go into effect until it has been delivered to Congress for review. A "rule" is defined broadly to include all general agency statements that affect the public, including "interpretive" rules, agency "policy statements," "guidelines," and "staff manuals." Federal agencies must report to Congress on each rule; specifically, they must state whether they have evaluated the costs of the rule relative to its benefits, whether it will require the taking of private property, and whether it affects the relationship between the federal government and state and local governments. Any rule rejected by Congress would have to be changed substantially before it could be resubmitted.
So far, Congress has not used the CRA to reject a rule, but the Act has produced valuable information--perhaps much more than Congress could have foreseen. The GAO now prepares summary reports of agencies' regulatory analyses for major rules; it also has compiled a database of all final regulations issued by federal agencies since passage of the CRA. This is the first time in congressional history that a system has been put in place to conduct a comprehensive tracking of the rules federal regulatory agencies produce. This database provides Congress with actual, not projected, data on federal regulatory activity. This type of information was not available before the CRA was passed.
According to the GAO, between April 1, 1996, and April 30, 1998, Congress received from federal regulatory agencies a total of 8,675 final rules for review under the Congressional Review Act.5 Chart 1 provides a snapshot of rulemaking in 1997, the first full calendar year of the database. During 1997, the GAO reports, agencies issued 59 major and 3,938 non-major rules. The agencies that issued the greatest number of major final rules were the Federal Communications Commission (FCC) at 22 percent, the Securities and Exchange Commission (SEC) at 11 percent, the U.S. Department of Agriculture (USDA) at 11 percent, the Department of Health and Human Services (HHS) at 10 percent, the Department of the Interior at 10 percent, and the EPA at 8 percent. The agencies that issued the most non-major final rules during this same period were the Department of Transportation's Federal Aviation Administration (FAA) at 34 percent, the EPA at 13 percent, the Treasury Department's Internal Revenue Service at 8 percent, and the Commerce Department's National Oceanic and Atmospheric Administration (NOAA) at 7 percent.
8/20/97; SEC, Exemption for the Acquisition
Securities (OGC-97-57); D'Amato/Sarbanes/Bliley/
Social Security Administration