By: Robert G. McLusky and
The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president. Thus, while Congress voted to disapprove several rules under the Obama administration, all of the disapprovals were vetoed. In fact, the CRA has only been successfully used under Bush II to disapprove an OSHA ergonomics rule adopted in the waning days of the Clinton administration. Now, however, with Republicans controlling both houses of Congress and the White House, the CRA is a weapon to be reckoned with in a target rich environment. Among the first rules likely to be targeted will be the Office of Surface Mining’s Stream Protection Rule[1] and the Environmental Protection Agency’s Methane Rule.[2]
CRA Background
- The CRA was enacted in 1996 to reestablish a measure of legislative control over agency rulemaking. 5 U.S.C. §§ 801–805.
- Requires executive agencies to send their rules to both houses of Congress and the GAO before they can take effect. 5 U.S.C. § 801(a)(1)(A).[3]
- Delays effective date of “major rules” even further—until 60 days after publication in FR or until submitted to Congress, whichever is later. 5 U.S.C. § 801(a)(3).[4]
- Allows a Member of Congress to introduce a joint resolution of approval regarding a rule “beginning on the date on which the report referred to in Section 801(a)(1)(A) is received by Congress.” 5 U.S.C. § 802(a).[5]
- The period for introducing a joint resolution starts upon “receipt” by Congress of the final rule and ends 60 days after Congress receives the rule, but the time period does not include days when either house is adjourned for more than 3 days. 5 U.S.C. § 802(a). In addition, if the rule is submitted to Congress with less than 60 days left before the session expires, then a new period of review becomes available in the next session of Congress. In that event, the rule is treated as if it had been submitted to Congress on the 15th day of the new session. See 5 U.S.C. § 801(d).
- A joint resolution shall be referred to the committees in each House of Congress with jurisdiction. 5 U.S.C. § 802(b)(1).
- Senate Procedures:
?If a committee to which a joint resolution has been referred does not report the resolution after 20 days [from submission or publication] 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 shall be placed on the calendar.
?When a committee to which the resolution is referred either “reports” or is “discharged” from reporting, then a motion to consider the resolution is in order without being subject to a motion to amend, postpone or consider other business.
?Before the Senate, debate or the resolution is limited to 10 hours.
- If the joint resolution is ultimately enacted, the rule may not take effect (or continue in effect), and may not be reissued in substantially the same form. 5 U.S.C. § 801(b)(2).
Answers to Questions
Can the CRA be Used to Disapprove of Portions of a Rule or More Than One Rule?
No. The CRA can only be used to invalidate a single rule in its entirety; it cannot be used to modify or restructure a rule,[6] and a single resolution cannot invalidate more than one rule. 5 U.S.C. § 802(c) & (d).
Number of Rules Outlined by CRA
Only one rule has been overturned (OSHA’s ergonomic standards under Clinton administration in 2001). Five were passed by Congress under the Obama administration, but they were all vetoed. CRA FAQ, p. 5.
How Can You Determine if a Rule has Been Submitted Under CRA?
- Notice of each Congressional house’s receipt appears in the “Executive Communications” section of the daily Congressional Record. They can also be searched using the Legislative Information System.
- Submissions to GAO: GAO has a database at http://gao.gov/legal/congressional-review-act/overview. This contains links to reports by the GAO on major rules.
How is a Joint Resolution of Disapproval Introduced?
- A joint disapproval resolution is introduced like other bills, but there is precise language required and defined time limits during which it must be submitted.
- The receipt of the rule by Congress starts the 60 “days-of-continuous session” during which any member of either house may submit a resolution.
–A rule is considered received by Congress on the later date of receipt by the Speaker of the House or its referral to Senate committee.
–In calculating “days of continuous session” every calendar day is counted, including weekends and holidays, and the count is paused only for periods where either chamber adjourns for more than three days.
–The resolution must be submitted during this 60-day period—not before and not after.
- The CRA specifies that the language after the “resolving clause” must read:
That Congress disapproves the rule submitted by the _____ relating to ______, and such rule shall have no force or effect. (The blank spaces being appropriately filled in.)
This article was authored by Robert G. McLusky and Jennifer L. Hughes, Jackson Kelly PLLC
[1] Stream Protection Rule, 81 Fed. Reg. 93,066 (Dec. 20, 2016) (to be codified at 30 C.F.R. pts. 700-01, 773-74, 777, 779-80, 783-85, 800, 816-17, 825, and 827)..
[2] Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources, 81 Fed. Reg. 35,824 (June 3, 2016) (to be codified at 40 C.F.R. pt. 60).
[3] “Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing – (i) a copy of the rule; (ii) a concise statement relating to the rule, including whether it is a major rule; and (iii) the proposed effective date of the rule.” 5 U.S.C. § 801(a)(1)(A).
[4] “Major rules” are those “that the Administrator of the Office of Information and Regulatory Affairs [OIRA] of [OMB] finds has resulted in or is likely to result in – (A) an annual effect on the economy of $100 [million] or more; (B) a major increase in costs or prices for consumers, individual industries, . . . agencies or geographic regions; or (C) significant adverse effects on competition, employment. . . .” 5 U.S.C. § 804(2).
The Stream Protection Rule was not identified as a “major” rule. It is unclear what effect there is to a misclassification of a rule or a failure to submit it to the GA/Congress since the CRA also provides that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.” 5 U.S.C. § 805.
[5] Since the ability to introduce a resolution is tied to the submission of a report to Congress and the GAO by the issuing agency, does the failure of an agency to submit the rule prevent the introduction of a resolution? According to one researcher, the Senate Parliamentarian has ruled that if the GAO determines an agency action is a covered rule that should have been submitted, a Member can introduce a resolution of disapproval starting on the day of GAO’s determination. See Congressional Review Act: Many Recent Final Rules Were Not Submitted to GAO and Congress, Independent Report of Curtis W. Copeland (July 15, 2014), p. 7 n. 15 (citing, e.g., http://www.finance.?senate.gov/newsroom/chairman/release/?id=363028c1-c4fe-4ca9-b180-746e3e9daf82.
[6] Congressional Review Act: Frequently Asked Questions, CRS Report (Nov. 17, 2016) (“CRA: FAQ”), p. 4.