Congressional Review of Agency Rulemaking
5 U.S.C. §§ 801-808 (2012); enacted March 29, 1996, by Pub. L. No. 104-121, § 251, 110 Stat. 847, 868–74.
No single agency is charged with overseeing the Act. Various executive and legislative branch agencies have responsibilities:
Office of Management and Budget, Office of Information and Regulatory Affairs, determines which rules are “major” rules.
Agencies must submit rules to both Houses of Congress as well as the Government Accountability Office
The Small Business Regulatory Enforcement Fairness Act of 1996, enacted as title II of the Contract with America Advancement Act (Pub. L. No. 104-121), created a process for congressional review of agency rulemaking in Subtitle E. It added a new chapter 8 to title 5 of the U.S.C. In an effort to increase accountability for costly rules, this Act mandates that agencies submit a copy to Congress. Congress then hasthe opportunity to use expedited procedures to pass a joint resolution of disapproval of the rule. It was effective upon enactment (March 29, 1996).
Summary of procedure. The principal provisions of section 801 may be summarized briefly. Subsection 801(a)(1)(A) defines the basic procedure that an agency must follow after adopting a rule. Before a rule can take effect, agencies must submit a report to each House of Congress and to the Comptroller General (GAO) containing a copy of the rule and indicating whether is the rule qualifies as a major rule. In addition, agencies must provide a copy of any cost-benefit analysis of the rule and the agency statements made under any other acts (such as the Unfunded Mandates Reform Act, the Paperwork Reduction Act, or the Regulatory Flexibility Act). For major rules, the Comptroller has 15 days after submission to provide a report to the committees of jurisdiction in each House of Congress.
Major and non-major rules. The term “rule” as used in the Congressional Review Act follows the definition found in the Administrative Procedure Act. Section 804(1). The term “rule,” therefore, includes rules that may be exempt from the APA’s notice-and comment procedures, such as statements of general policy, interpretive rules, and rules relating to government grants, benefits, contracts, etc. A “major rule” is defined as a rule that has resulted in, or is likely to result in, an annual effect on the economy of one hundred million dollars or more, a major increase in cost of prices for consumers or industry, or significant adverse effects on competition, employment, investment, productivity, or competition of prices in foreign markets. Section 804(2). The effective date of non-major rules is not delayed by the Act, but the effective date of major rules is delayed at least 60 days from the date the rule is published in the Federal Register or from the date the agency’s report on the rule is submitted, whichever is later (unless a resolution of disapproval is defeated during that time). Section 801(a)(3). However, all rules for which the agency has invoked the “good cause” exemption in the APA from notice and comment procedures are effective immediately, as are rules concerning hunting, fishing, and camping. Section 808.
The following types of rules are exempted from congressional review: (1) rules of particular applicability (including rules that approve or prescribe future rates, wages, prices, etc.); (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of nonagency parties. Section 804(3). Also excluded from congressional review are rules the FCC promulgates under the Telecommunications Act of 1996 and Federal Reserve Board monetary rules.
The Act allows for any member of Congress to introduce a resolution of disapproval. The disapproval takes effect with agreement of both Houses of Congress and presentment to the President. If the President vetoes the joint resolution, Congress then has the opportunity to override the veto.
The Act also contains complicated provisions in section 802 addressing how days are counted for purposes of the expedited legislative process to consider joint resolutions of disapproval. Consider for example the timing instruction that as long as a resolution of disapproval is introduced within 60 calendar daysof receipt of the rule and report (but not counting periods when either house is adjourned for longer than three days), there is no time limit on congressional action on that resolution during that Congress. Moreover, if a major rule is submitted to Congress in the final 60 days of a congressional session, the Act provides Congress with a special extended review period.
There are also procedures, primarily designed to prevent Senate filibusters, that require a discharge from committee and floor debate on the resolution when at least 30 senators so petition. While the Act does not grant a similar expedited procedure to representatives in the House, it does allow for circumvention of House committees in other instances. For example, when a disapproval resolution is sent from the Senate to the House, the latter cannot refer the resolution to a committee. The same rule also applies for disapproval resolutions sent from the House to the Senate.
Under section 801(f), once a resolution of disapproval is enacted, a new rule that had already gone into effect is “treated as though such rule had never taken effect.” Moreover, when a rule is disapproved, a new rule that is “substantially the same” as the disapproved rule may not be issued unless authorized by subsequent law.
The judicial review provision of the Act is set forth in section 805 and states that no action or omission in the chapter is subject to judicial review. Section 801(g) provides that if Congress does not enact a joint resolution of disapproval, “no court or agency may infer any intent of the Congress from any action or inaction.” Notwithstanding the seemingly unqualified preclusion of judicial review, some district courts have concluded that the provision does not bar jurisdiction to review an agency’s compliance with the CRA, i.e., “whether an agency rule is in effect that should have been reported to Congress pursuant to the CRA.”3
Impact of the Law
While a large number of rules are sent to Congress each week, the impact of the CRA on the rulemaking process was initially slight. During the first two decades after enactment, only one rule was disapproved, and few resolutions of disapproval were introduced. The first disapproval of a rule occurred in March 2001 when Republican congressional leadership, supported by the Bush Administration, successfully used the Congressional Review Act to overturn OSHA’s controversial ergonomic regulations. President Clinton had issued final ergonomic regulations in November 2000, but the rules did not take effect until January 16, 2001, four days before he left office. See 65 Fed. Reg. 68,262 (Nov. 14, 2000). After the inauguration of President George W. Bush, the Republican-controlled Senate and House voted to approve the Joint Resolution of disapproval, and President Bush signed it into law.
This was an unusual circumstance, because the rule in question received approval by a previous administration but due to the holdover provision in the law became subject to review by a new Congress and new President controlled by the other party. It should be remembered that enactment requires either signing (normally) by the same President whose OMB has already cleared the rule or a very rare veto override—so the number of rules to be overturned through this mechanism will likely be low.
During the Trump administration, the Act has seen increased usage with the enactment of 15 additional disapproval resolutions, all between February and November 2017. The Federal Register’s website compiles all Resolutions of Disapproval under the Congressional Review Act.
Concerned by the perceived impotence of the Act, congressional opponents of regulation have trumpeted and introduced the Regulations from the Executive in Need of Scrutiny Act (REINS Act) in the 112th, 113th, and 114th Congresses. Unlike under Act, a major rule facing scrutiny under REINS would generally only take effect if Congress enacted a joint resolution of approval. In both 2013 and 2015, the Republican-controlled House succeeded in passing such a bill along party lines. The bills never reached President Obama’s desk. Legislative History: The legislation that was to become the Congressional Review Act was included in several Senate “comprehensive regulatory reform bills” considered in the 104th Congress. The Judiciary Committee’s bill, S. 343, introduced by Majority Leader Dole (R-KS) on February 2, 1995, did not contain this provision originally. Subcommittee hearings were held on February 22 and full committee hearings on March 17. On May 26, S. 343 was jointly reported to the Senate by both the Judiciary and Governmental Affairs Committee and contained a simplified version of the Congressional Review Act. S. 343 ultimately failed to achieve cloture in floor votes and thus was not passed. Other bills that did not reach a floor vote included a similar provision: the Governmental Affairs Committee bill, S. 291, introduced by Sen. Roth (R-DE). S. 291was reported by that committee on May 25, 1995, and an alternative bill introduced in June by the ranking member of that committee, Senator Glenn (DOH), S. 1001. Although these comprehensive bills lacked enough bipartisan support to be enacted, the congressional review provisions attracted support from both parties. In the next session, Representative Archer (R-TX) introduced H.R. 3136 (the bill that ultimately was enacted as Pub. L. No. 104-21) on March 29, 1996. Its title at the time of introduction was “A bill to provide for enactment of the Senior Citizens’ Right to Work Act of 1996, the Line Item Veto Act, and the Small Business Growth and Fairness Act of 1996, and to provide for a permanent increase in the public debt limit.” Subtitle E contained the more complicated version of the Congressional Review Act that was subsequently enacted. The bill was reported for floor action by the Rules Committee as the “Contract With America Advancement Act of 1996.” (See H. Res 392, approved by recorded vote in the House on March 28, 1996.) The bill was amended to add several other “regulatory reform” provisions acceptable to the White House—some of which derived from H.R. 9, the “Job Creation and Wage Enhancement Act of 1995” (the legislation introduced at the beginning of the 104th Congress to implement the original “Contract With America”). As passed by the House, H.R. 3136 was quickly sent to the Senate and was approved by unanimous consent. It was signed into law by President Clinton the next day.
Bibliography: I. Legislative History 1. Regulatory Reform, hearings before the Senate Comm. on Governmental Affairs, 104th Cong. 1st Sess. (Feb. 7, 8, 15; Mar. 8, 1995). 2. Comprehensive Regulatory Reform Act of 1995, hearings before the Subcomm. on Administrative Oversight and the Courts, Senate Comm. on the Judiciary, 104th Cong. 1st Sess. (Feb. 22, 24, 1995). 3. Regulatory Reform, hearings before the Senate Comm. on the Judiciary, 104th Cong. 1st Sess. (Mar. 17, 1995). 4. S. 291, Regulatory Reform Act of 1995, Senate Comm. on Governmental Affairs, Sen. Rep. 104-88, 104th Cong. 1st Sess. (May 25, 1995). 5. Comprehensive Regulatory Reform Act of 1995: S.343, Senate Comm. on the Judiciary, Sen. Rep. 104-89, 104th Cong. 1st Sess. (May 26, 1995). 6. Comprehensive Regulatory Reform Act of 1995: S.343, Senate Comm. on the Judiciary, Sen. Rep. 104-90, 104th Cong. 1st Sess. (May 26, 1995). 7. H. Res. 391, Providing for the Consideration of H.R. 3136, the Contract With America Advancement Act of 1996, House Rules Comm., House Rep. 104-500 (Mar. 27, 1996). II. Other Government Documents 1. Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, Memorandum for Heads of Executive Departments, Agencies, and Independent Establishments, New Statutory Procedures for Regulations (Apr. 2, 1996). 2. Oversight Hearings on the Congressional Review Act, Hearings before the Subcomm. on Commercial and Administrative Law of the House Comm. on the Judiciary, 105th Congress, 1st Sess. (Mar. 6, 1997). 3. Rulemakings Must Follow the Rules, Too: Oversight of Agency Compliance with the Congressional Review Act, Hearing before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 115th Cong. (2017). https://www.gpo.gov/fdsys/pkg/CHRG-115hhrg29778/pdf/CHRG-115hhrg29778.pdf 4. U.S. General Accounting Office, Regulatory Reform: Major Rules Submitted for Congressional Review During the First 2 Years (letter to Members of Congress), GAO/GGD-98-102R (Apr. 24, 1998). 5. U.S. General Accounting Office, Congressional Review Act: Update on Implementation and Coordination, T-OGC-98-55 (June 17, 1998). 6. U.S. General Accounting Office, Comments on Whether EPA Interim Guidance Is a Rule Under the Congressional Review Act, B-281575 (Jan. 20, 1999). 7. U.S. Government Accountability Office, Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents’ Terms (GAO-18-183) (March 2018). 8. Office of Information and Regulatory Affairs, Office of Managementand Budget, Form for Submission of Federal Rules Under the Congressional Review Act (Mar. 23, 1999). 9. Richard S. Beth, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act (CRS Report for Congress Oct. 10, 2001), available at http://www.senate.gov/reference/resources/pdf/ RL31160.pdf. 10. Morton Rosenberg, Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After Ten Years (CRS Report for Congress, American Law Division) (RL30116) (Mar. 29, 2006), available at http://www.opencrs.com/rpts/RL30116_20060329.pdf. 11. U.S. Government Accountability Office, Federal Rulemaking: Perspectives on 10 Years of Congressional Review Act Implementation, GAO-06601T (Mar. 30, 2006). 12. U.S. Government Accountability Office, Congressional Review Act,Statement of Gary Kepplinger, General Counsel, Before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary, House of Representatives, GAO-08-268T (Nov. 6, 2007). [For a full list of GAO “opinions and testimonies” concerning the Congressional Review Act, see http://www.gao.gov/decisions/cra/index.html.] 13. Valerie C. Brannon & Maeve P. Carey, The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress (CRS Report for Congress) (R45248) (July 5, 2018). 14. Curtis W. Copeland, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress (updated Sept. 3, 2008), CRS Report, RL34633, available at http://assets.opencrs.com/rpts/RL34633_20080903.pdf. 15. Curtis W. Copeland, Congressional Review Act: Rules Not Submitted to GAO and Congress (CRS Report for Congress) (R40997) (Dec. 29, 2009), available at http://www.foreffectivegov.org/files/regs/PDFs/CRS122909.pdf. 16. Morton Rosenberg, A Report Prepared for the Administrative Conference of the United States, The Critical Need for Effective Congressional Review of Agency Rules: Background and Considerations for Incremental Reform (July 18, 2012), available at www.acus.gov/report/congressionalreview-act-report. 17. “REINS Act of 2013”: Promoting Jobs, Growth and American Competitiveness, Hearing before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the Committee on the Judiciary House of Representatives, 113th Cong., 1st Session on H.R. 367 (Mar. 5, 2013). III. Books and Articles 1. Robert S. Ballentine, Ethics in Environmental Regulatory Compliance - Conflicts Arising in a Transitional World, 58 S. TEX. L. REV. 491 (2017). 2. Steven J. Balla, Legislative Organization and Congressional Review of Agency Regulations, 16 J. L. Econ. & Org. 424 (2000).
3. Matthew S. Booker & Michael A. Livermore, Centralizing Congressional Oversight, 32 J.L. & POL.S 261 (2017).
4. Cary Coglianese & Gabriel Scheffler, What Congress’s Repeal Efforts Can Teach Us About Regulatory Reform, 3 ADMIN. L. REV. ACCORD 43 (2017). 5. Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Regulations, 49 ADMIN. L. REV. 95 (1997). 6. Michael J. Cole, Interpreting the Congressional Review Act: Why the Courts Should Assert Judicial Review, Narrowly Construe “Substantially the Same,” and Decline to Defer to Agencies Under Chevron, 70 ADMIN. L. REV. 53 (2018). 7. John Conyers, Jr., Henry Johnson, Jr., & David N. Cicilline, The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration, 54 HARV. J. ON LEGIS. 365 (2017). 8. Sean D. Croston, Congress and the Courts Close Their Eyes: The Continuing Abdication of the Duty to Review Agencies’ Noncompliance with the Congressional Review Act, 62 Admin. L. Rev. 907 (2010). 9. Adam M. Finkel & Jason W. Sullivan, A Cost-Benefit Interpretation of the “Substantially Similar” Hurdle in the Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics) Again?, 63 Admin. L. Rev. 707 (2011). 10. Paul J. Larkin, Jr., Reawakening the Congressional Review Act, 41 HARV. J.L. & PUB. POL’Y 187 (2018). 11. Note, The Mysteries of the Congressional Review Act, 122 Harv. L. Rev. 2162 (2009). 12. William Alan Nelson, Unfaithful Execution of the Law: Congressional Interference with Agency Decision-Making, 42 SETON HALL LEGIS. J. 95 (2017). 13. David L. Noll, Deregulating Arbitration, 30 LOY. CONSUMER L. REV. 51 (2017). 14. James T. O’Reilly, FDA Rulemaking After the 104th Congress: Major Rules Enter the Twilight Zone of Review, 51 Food & Drug L.J. 677 (1996). 15. Julie A. Parks, Comment, Lessons in Politics: Initial Use of the Congressional Review Act, 55 Admin. L. Rev. 187 (2003). 16. Peter A. Pfohl, Congressional Review of Agency Rulemaking: The 104th Congress and the Salvage Timber Directive, 14 J. L. & Politics 1 (1998). 17. Morton Rosenberg, Whatever Happened to Congressional Review of Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform, 51 Admin. L. Rev. 1051 (1999). 18. Mark Seidenfeld, The Psychology of Accountability and the Political Review of Agency Rules, 51 Duke L.J. 1059 (2001). 19. Stuart Shapiro & Deanna Moran, The Checkered History of Regulatory Reform Since the APA, 19 N.Y.U. J. LEGIS. & PUB. POL’Y 141 (2016). 20. Brie D. Sherwin, Regulating Coal Ash Waste in the Trump Era, 37 STAN. ENVTL. L.J. 75 (2017). 21. Paul R. Verkuil, The Wait is Over: Chevron as the Stealth Vermont Yankee, 75 Geo. Wash. L. Rev. 921 (2007). 22. Christopher J. Walker, Restoring Congress’s Role in the Modern Administrative State, 116 MICH. L. REV. 1101 (2018). Appendix: 1. 5 U.S.C. Chapter 8 (§§ 801–808) (2012) (“Congressional Review of Agency Rulemaking”).