Congressional Review of Agency Rulemaking: An Update and Assessment of The Congressional Review Act after a Decade
Congressional research reportMay 8, 2008
Ask Donna
What actually matters in this document.
Text
Order Code RL30116
Congressional Review of Agency Rulemaking:
An Update and Assessment of The
Congressional Review Act after a Decade
Updated May 8, 2008
Morton Rosenberg
Specialist in American Public Law
American Law Division
Congressional Review of Agency Rulemaking: An
Update and Assessment of The Congressional Review
Act after a Decade
Summary
On March 29, 1996, the President signed into law the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat.
857-874, Subtitle E of which for the first time established a mechanism by which
Congress can review and disapprove, by means of an expedited legislative process,
virtually all federal agency rules. However, critics have questioned the efficacy of
the review scheme as a vehicle to control agency rulemaking through the exercise of
legislative oversight. These questions have been raised despite the use of the CRA
to nullify OSHA’s controversial ergonomics standards in March 2001. In the view
of some observers, the OSHA action was the result of a unique confluence of
circumstances not likely to soon recur: the White House and both Houses of
Congress in the hands of the same political party, a contentious rule promulgated in
the waning days of an outgoing Administration; longstanding opposition to the rule
by some in Congress and by a broad coalition of business interests; and
encouragement of repeal by the President. On the other hand, some maintain that a
number of major rules have been affected by the Agency recognition of the existence
of the review mechanism, and argue that the review scheme has had a significant
influence.
Critics argue that potential impediments to the law’s use, the scheme provides
no expedited consideration procedure in the House of Representatives; there is no
screening mechanism to identify rules that may require special congressional
attention; and a disapproval resolution of a significant or politically sensitive rule is
likely to need a supermajority to be successful if control of the White House and the
Congress are in different political hands, as was the case between April 1996 and
January 2001, and is the case now. Moreover, a number of critical interpretive issues
remain to be resolved, including the scope of the provisions’ coverage of rules;
whether an agency failure to report a covered rule is subject to court review and
sanction; whether a joint resolution of disapproval may be utilized to veto parts of a
rule or only may be directed at the rule in its entirety; and what is the scope of the
limitation that precludes an agency from promulgating a “substantially similar” rule
after disapproval of a rule. Of a total of 47 joint resolutions of disapproval that have
been introduced to date since April 1996, only one has passed and that one may have
been sui generis because of the unique circumstances accompanying its passage.
During that period some 47,540 major and non-major rules have been reported and
become effective.
This report will provide a brief explanation of how the structure of the review
scheme was expected to operate and describes how it has in fact been utilized. The
possible reasons for the relatively limited use of the formal mechanism thus far are
assessed.
This report will be updated as warranted.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Review of Agency Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Utilization of the Review Mechanism Since 1996 . . . . . . . . . . . . . . . . . . . . 6
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Lack of a Screening Mechanism to Pinpoint Rules That Need
Congressional Review; Proposals for Change . . . . . . . . . . . . . . 18
2. Lack of an Expedited House Procedure . . . . . . . . . . . . . . . . . . . . . 22
3. The Deterrent Effect of the Ultimate Need for a Supermajority
to Veto a Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4. The Reluctance to Disapprove an Omnibus Rule Where Only
One Part of the Rule Raises Objection . . . . . . . . . . . . . . . . . . . . 23
5. The Uncertainty of Which Rules Are Covered by the CRA . . . . . . 25
6. The Uncertainty of the Effect of an Agency’s Failure to Report a
Covered Rule to Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7. The Uncertainty of the Breadth of the Prohibition Against an
Agency’s Promulgation of a “Substantially Similar” Rule after
the Original Rule Has Been Vetoed . . . . . . . . . . . . . . . . . . . . . . . 35
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Selected Source Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
List of Tables
Table 1. Resolutions of Disapproval Introduced Under the Congressional
Review Act (April 1996-October 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Congressional Review of Agency
Rulemaking: An Update and Assessment of
The Congressional Review Act after a
Decade
Introduction
On March 29, 1996, the President signed into law the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat.
857-874, Subtitle E of which for the first time established a mechanism by which
Congress can review and disapprove, by means of an expedited legislative process,
virtually all federal agency rules. This was part of the Contract with America. Critics
have questioned the efficacy of the review scheme as a vehicle to control agency
rulemaking through the exercise of legislative oversight. These questions have been
raised despite the use of the CRA to nullify OSHA’s controversial ergonomics
standard in March 2001. It has been argued that the action on the OSHA proposal
was the result of a unique confluence of circumstances not likely to soon recur: the
White House and both Houses of Congress in the hands of the same political party,
a contentious rule promulgated in the waning days of an outgoing Administration;
longstanding opposition to the rule by some in Congress and by a broad coalition of
business interests; and encouragement of repeal by the President. On the other hand,
some maintain that a number of major rules have been affected by Agency
recognition of the availability of the review mechanism, and argue that the review
scheme has had a significant influence.
Critics who maintain that the CRA has not been appropriately utilized assert that
the current procedure provides for no expedited consideration in the House of
Representatives; lacks a screening mechanism to identify rules that may require
special congressional attention; and, that a disapproval resolution of a significant or
politically sensitive rule is likely to need a supermajority to be successful if control
of the White House and the Congress are in different political hands. They further
contend that a number of critical interpretive issues and questions remain to be
resolved, including the scope of the provisions’ coverage of rules; whether an agency
failure to report a covered rule is subject to court review and sanction; whether a joint
resolution of disapproval may be utilized to veto parts of a rule or only may be
directed at the rule in its entirety; and what is the scope of the limitation that
precludes an agency from promulgating a “substantially similar” rule after
disapproval of a rule. From these critics’ perspective potential impediments and
uncertainties have contributed to the fact that of a total of 47 joint resolutions of
disapproval that have been introduced to date since April 1996, only one has passed.
They point out that during that period over 47,540 major and non-major rules have
been reported and become effective.
CRS-2
This report will provide a brief explanation of how the review scheme was
expected to operate and describe how it has been utilized. The possible reasons for
the relatively limited use of the formal review mechanism thus far are assessed.
Many do not support increased utilization of the CRA review process. Those
holding this opinion may represent a number of views including concern that
expanded use of the process will lead to the disproportionate influence on Federal
regulations by powerful interest groups or that many regulations have become too
technical to be judged by “non-experts.” However, since these positions have seldom
been articulated publicly, the are not well represented in this report.
Review of Agency Rules
The congressional review mechanism, codified at 5 U.S.C. 801-808, and
popularly known as the Congressional Review Act (CRA), requires that all agencies
promulgating a covered rule must submit a report to each House of Congress and to
the Comptroller General (CG) that contains a copy of the rule, a concise general
statement describing the rule (including whether it is deemed to be a major rule), and
the proposed effective date of the rule. A covered rule cannot take effect if the report
is not submitted. Section 801(a)(1)(A). Each House must send a copy of the report
to the chairman and ranking minority member of each jurisdictional committee.
Section 801(a)(1)(C). In addition, the promulgating agency must submit to the CG
(1) a complete copy of any cost-benefit analysis; (2) a description of the agency’s
actions pursuant to the requirements of the Regulatory Flexibility Act and the
Unfunded Mandates Reform Act of 1995; and (3) any other relevant information
required under any other act or executive order. Such information must also be made
“available” to each House. Section 801(a)(1)(B).
Section 804(3) adopts the definition of “rule” found at 5 U.S.C. 551(4) which
provides that the term rule “means the whole or part of an agency statement of
general . . . applicability and future effect designed to implement, interpret, or
prescribe law or policy.”1 The legislative history of Section 551(4) indicates that
the term is to be broadly construed: “The definition of rule is not limited to
substantive rules, but embraces interpretive, organizational and procedural rules as
well.”2 The courts have recognized the breadth of the term, indicating that it
encompasses “virtually every statement an agency may make,”3 including interpretive
and substantive rules, guidelines, formal and informal statements, policy
proclamations, employee manuals and memoranda of understanding, among other
1
Section 804(3) excludes from the definition “(A) any rule of particular applicability,
including a rule that approves or prescribes for the future rates, wages, prices, services, or
allowance therefore, corporate or financial structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing;
(B) any rule relating to agency management or personnel; or (C) any rule of agency
organization, or practice that does not substantially affect the rights or obligations on nonagency parties.”
2
Attorney General’s Manual on the Administrative Procedure Act 13 (1948).
3
Avoyelles Sportmsmen’s League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983).
CRS-3
types of actions. Thus a broad range of agency action is potentially subject to
congressional review.
The Comptroller General and the Administrator of the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget have particular
responsibilities with respect to a “major rule,” defined as a rule that will likely have
an annual effect on the economy of $100 million or more, increase costs or prices for
consumers, industries or state and local governments, or have significant adverse
effects on the economy. The determination of whether a rule is major is assigned
exclusively to the Administrator of OIRA. Section 804(2). If a rule is deemed major
by the OIRA Administrator, the CG must prepare a report for each jurisdictional
committee within 15 calendar days of the submission of the agency report required
by Section 801(a)(1) or its publication in the Federal Register, whichever is later.
The statute requires that the CG’s report “shall include an assessment of the agency’s
compliance with the procedural steps required by Section 801(a)(1)(B).”4 Section
801(a)(2)(A). The CG has interpreted his duty under this provision relatively
narrowly as requiring that he determine whether the prescribed action has been taken,
i.e., whether a required cost-benefit analysis has been provided, and whether the
required actions under the Regulatory Flexibility Act, the Unfunded Mandates
Reform Act of 1995, and any other relevant requirements under any other legislation
or executive orders were taken, not to examine the substantive adequacy of the
actions.
The designation of a rule as major also affects its effective date. A major rule
may become effective on the latest of the following scenarios: (1) 60 calendar days
after Congress receives the report submitted pursuant to Section 801(a)(1)5 or after
the rule is published in the Federal Register; (2) if Congress passes a joint resolution
of disapproval and the President vetoes it, the earlier of when one House votes and
fails to override the veto, or 30 calendar days after Congress receives the veto
4
See, e.g., Chem Service, Inc. v. EPA, 12 F.3d 1256 (3d Cir. 1993)(memorandum of
understanding); Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74 (4th
Cir. 1993)(interpretative rules); National Treasury Employees Union v. Reagan, 685 F.Supp
1346 (E.D. La 1988)(federal personnel manual letter issued by OPM); New York City
Employment Retirement Board v. SEC, 45 F.3d 7 (2d Cir. 1995)(affirming lower court’s
ruling that SEC “no action” letter was a rule within section 551(4)).
5
The General Counsel of the Government Accountability Office (GAO) has ruled that the
60-day period does not begin to run until both Houses of Congress receive the required
report. See B-289880, April 5, 2002, opinion letter to Hon. Edward M. Kennedy, Chairman,
Senate Committee on Health, Education, Labor and Pensions from Anthony H. Gamboa,
General Counsel. The situation involved a Department of Health and Human Service’s
(HHS) major rule published in the Federal Register on January 18, 2002 with an announced
effective date of March 29, 2002. The House of Representatives, however, did not receive
the rule until February 14, 2002. HHS thereafter delayed the effective date of the rule until
April 15, 2002, in an attempt to comply with the CRA. But the Senate did not receive the
rule until March 15, 2002. The General Counsel determined that the rule could not become
effective until May 14, 2002, 60 days following the Senate’s receipt, relying on the language
of Section 801(a)(1)(A) of the act requiring that a copy of a covered rule must be be
submitted “to each House of Congress” in order to become effective.
CRS-4
message; or (3) the date the rule would otherwise have taken effect (unless a joint
resolution is enacted). Section 801(a)(3).
Thus the earliest a major rule can become effective is 60 calendar days after the
later of the submission of the report required by Section 801(a)(1) or its publication
in the Federal Register, unless some other provision of the law provides an exception
for an earlier date. Three possibilities exist. Under Section 808(2) an agency may
determine that a rule should become effective notwithstanding Section 801(a)(3)
where it finds “good cause that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.”6 Second, the President
may determine that a rule should take effect earlier because of an imminent threat to
health or safety or other emergency; to insure the enforcement of the criminal laws;
for national security purposes; or to implement an international trade agreement.
Section 801(c). Finally, a third route is available under Section 801(a)(5) which
provides that “the effective date of a rule shall not be delayed by operation of this
chapter beyond the date on which either House of Congress votes to reject a joint
resolution of disapproval under Section 802.”7
All other rules take effect “as otherwise allowed by law” after having been
submitted to Congress under Section 801(a)(1). Section 801(a)(4). Under the
Administrative Procedure Act, a final rule may go into effect 30 days after it is
published in the Federal Register in final form. 5 U.S.C. 553(d). An agency, in its
discretion, may delay the effectiveness of a rule for a longer period; or it may put it
into effect immediately if good cause is shown.
All covered rules are subject to disapproval even if they have gone into effect.
Congress has reserved to itself a review period of at least 60 days. Moreover, if a
rule is reported within 60 session days of adjournment of the Senate or 60 legislative
days of adjournment of the House, the period during which Congress may consider
and pass a joint resolution of disapproval is extended to the next succeeding session
of the Congress. Section 801(d)(1). Such held over rules are treated as if they were
published on the 15th session day of the Senate and the 15th legislative day of the
6
Reviewing courts have generally applied the Administrative Procedure Act’s good cause
exemption, from which this language is obviously taken, narrowly in order to prevent
agencies from using it as an escape clause from notice and comment requirements. See, e.g.,
Action on Smoking and Health v. CAS, 713 F.2d 795, 800 (D.C. Cir. 1987). However, since
Section 805 precludes judicial review for any “determination, finding, action or omission
under this chapter”, there could be no court condemnation of a good cause determination.
But the rule would still be subject to congressional vacation and retroactive nullification.
7
In Leisegang v. Sect’y of Veterans Affairs, 312 F.3d 1368, 1373-1376 (Fed. Cir. 2002), the
appeals court held that Section 801(a)(3) “does not change the date on which [a major rule]
becomes effective. It only affects the date when the rule becomes operative. In other words,
the CRA merely provides a 60-day waiting period before the agency may enforce the major
rule so that Congress has the opportunity to review the regulation.” At issue in the case was
the date from which certain veterans benefits would be calculated. The benefit statute
provided that it would be the date of the issuance of the rule. The government argued that
the CRA was a superceding statute and that the effective date was when the CRA allowed
it to be operative. The appeals court agreed with the veterans that the date of issuance, as
prescribed by the law, was determinative.
CRS-5
House in the succeeding session and as though a report under Section 801(a)(1) was
submitted on that date. Section 801(d)(2)(A), (e)(2). But a held over rule takes
effect as otherwise provided. 801(d)(3). The opportunity for Congress to consider
and disapprove is simply extended so that it has a full 60 session or legislative days
to act in any session.
If a joint resolution of disapproval is enacted into law, the rule is deemed not to
have had any effect at any time. Section 801(f). If a rule that is subject to any
statutory, regulatory or judicial deadline for its promulgation is not allowed to take
effect, or is terminated by the passage of a joint resolution, any deadline is extended
for one year after the date of enactment of the joint resolution. Section 803. A rule
that does not take effect, or is not continued because of passage of a disapproval
resolution, may not be reissued in substantially the same form. Indeed, before any
reissued or new rule that is “substantially the same” as a disapproved rule can be
issued it must be specifically authorized by a law enacted subsequent to the
disapproval of the original rule. Section 801(b)(2).
Section 802(a) spells out the process for an up or down vote on a joint resolution
of disapproval.8 A joint resolution of disapproval must be introduced within 60
calendar days (excluding days either House of Congress is adjourned for more than
three days during a session of Congress) after the agency reports the rule to the
Congress in compliance with Section 801(a)(1). Timely introduction of a disapproval
resolution allows each House 60 session or legislative days to consider it through use
of expedited consideration procedures, and if passed, allows retroactive nullification
of an effective rule, and the limitation on an agency from promulgating a
“substantially similar” rule without subsequent congressional authorization to do so
by law.
The law provides an expedited consideration procedure for the Senate. If the
committee to which a joint resolution is referred has not reported it out within 20
calendar days after referral, it may be discharged from further consideration by a
written petition of 30 Members of the Senate, at which point the measure is placed
on the calendar. After committee report or discharge it is in order at any time for a
motion to proceed to consideration. All points of order against the joint resolution
(and against consideration of the measure) are waived, and the motion is not subject
to debate, amendment, postponement, or to a motion to proceed to other business.
If the motion to consider is agreed to, it remains as unfinished business of the Senate
until disposed of. Section 802(d)(1). Debate on the floor is limited to 10 hours.
Amendments to the resolution and motions to postpone or to proceed to other
business are not in order. Section 802(d)(2). At the conclusion of debate an up or
down vote on the joint resolution is to be taken. Section 802(d)(3).9
8
For an in-depth discussion of procedural issues that may arise during House and Senate
consideration of disapproval resolutions, see Richard S. Beth, CRS Report RL31160,
Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act,
October10, 2001 (Archived).
9
There is some question whether a motion to proceed is nondebatable because of the
absence of language so stating. Arguably, the nondebatability of the motion is integral both
(continued...)
CRS-6
There is no special procedure for expedited consideration and processing of
joint resolutions in the House. But if one House passes a joint resolution before the
other House acts, the measure of the other House is not referred to a committee. The
procedure of the House receiving a joint resolution “shall be the same as if no joint
resolution had been received from the other House, but . . . the vote on final passage
shall be on the joint resolution of the other House.” Section 802(f)(1)(2).
Section 805 precludes judicial review of any “determination, finding, action or
omission under this chapter.” This would insulate from court review, for example,
a determination by the OIRA Administrator that a rule is major or not, a presidential
determination that a rule should become effective immediately, an agency
determination that “good cause” requires a rule to go into effect at once, or a question
as to the adequacy of a Comptroller General’s assessment of an agency’s report. The
legislative history of this provision indicates that this preclusion of judicial review
would not apply to a court challenge to a failure of an agency to report a rule. This
appears not to be a judicially settled matter.10
Finally, the law provides a rule of construction that a reviewing court shall not
draw any inference from a congressional failure to enact a joint resolution of
disapproval with respect to such rule or a related statute. Section 801(g).
Utilization of the Review Mechanism Since 1996
As of March 31, 2008, the Comptroller General had submitted reports pursuant
to section 801(a)(2)(A) to Congress on 731 major rules.11 In addition, GAO had
cataloged the submission of 47,540 non-major rules as required by Section 801 (a)
(1) (A). To date, 47 joint resolutions of disapproval have been introduced relating
to 35 rules. One rule, OSHA’s ergonomics standard in March 2001, has been
disapproved, an action that some believe to be unique to the circumstances of its
passage. Two other rules have been disapproved by the Senate. One, the Federal
Communication Commission’s 2003 rule relating to broadcast media ownership was
disapproved by the Senate during the 108th Congress but was not acted upon by the
House. The second, a 2005 Department of Agriculture rule relating to the
9
(...continued)
to the scheme of the expedited procedure provisions as well as to the overall efficacy of the
CRA’s statutory scheme and thus may be implied. Alternatively, debate on such a motion
may be limited by Section 803(d)(2) which limits debate on joint resolutions, as well as “all
debatable motions,” to 10 hours. Ultimately, a resolution of this question would be made
by the Senate Parliamentarian, or the Senate itself. However, at the commencement of the
debate on S.J.Res. 6, to disapprove the ergonomics rule, the presiding officer declared that
“The motion to proceed is not debatable. The question is on agreeing to the motion.” The
motion was agreed to. 147 Cong. Rec. S 1831 (daily ed. March 6, 2001). At least one other
precedent exists in which it was ruled that a motion to proceed to a budget resolution under
the Budget Act was nondebatable despite the silence of the act on the matter. See, 127
Cong. Rec. S 4871 (May 12, 1981).
10
11
See discussion infra at pp 24-29.
General Accounting Office, Reports on Federal Agency Major Rules, which may be found
at [http://www.gao.gov/decisions/majrule/majrule.htm].
CRS-7
establishment of minimal risk zones for introduction of bovine spongiform
encephalopathy (Mad Cow Disease) was disapproved on March 3, 2005, but its
counterpart, H.J.Res. 23, was not acted upon by the House. A third joint resolution,
S.J.Res. 20, seeking disapproval of a rule promulgated by the Environmental
Protection Agency to delist coal and oil-direct utility units from the new source
category list under the Clean Air Act, was defeated in the Senate by a vote of 47-51
on September 13, 2005. The following chart details the subjects and actions taken on
the introduced resolutions.
Table 1. Resolutions of Disapproval Introduced Under the Congressional
Review Act (April 1996-October 2007)
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
S.J.Res. 60
Sen. Trent
Lott
HCFA/
HHS
Hospital
reimbursemen
t under
Medicare
Failed in passage
in Senate by UC
3/4/1997
H.J.Res. 59
Rep. Don
Young (+5)
USFWS/
DOI
Polar bear
trophies from
Canada
Hearing (House
Committee on
Resources)
3/20/1997
H.J.Res. 67
(Same as
S.J.Res. 25)
Rep. Roger
Wicker
(+54)
OSHA/
DOL
Occupational
exposure to
methylene
chloride
Referred to
Subcommittee of
House Committee
on Education and
the Workforce
4/10/1997
S.J.Res. 25
(Same as
H.J.Res. 67)
Sen. Thad
Cochran
(+5)
OSHA/
DOL
Occupational
exposure to
methylene
chloride
Referred to Senate
Committee on
Labor and Human
Resources
6/18/1997
H.J.Res. 81
Rep. Joe
Scarborough
FCC
Revision of
cable
television
leased
commercial
access rules
Referred to
Subcommittee of
House Committee
on Commerce
6/10/1998
S.J.Res. 50
(Same as
H.J.Res. 123)
Sen.
Christopher
Bond
HCFA/
HHS
Surety bond
requirements
for home
health
agencies
under
Medicare and
Medicaid
programs
Referred to Senate
Committee on
Finance
104th Congress
9/17/1996
105th Congress
CRS-8
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
6/17/1998
H.J. Res 123
(Same as
S.J.Res. 50)
Rep. Jim
Nussle
(+65)
HCFA/
HHS
Surety bond
requirements
for home
health
agencies
under
Medicare and
Medicaid
programs
Referred to
Subcommittees of
House Committees
on Ways and
Means and
Commerce
5/20/1999
H.J.Res. 55
Rep. Ron
Paul (+68)
USPS
Delivery of
mail to a
commercial
mail receiving
agency
Referred to
Subcommittee of
House Committee
on Government
Reform
7/13/2000
H.J.Res. 104
Rep. Ron
Paul
EPA
National
pollutant
discharge
elimination
system
program and
federal
antidegradatio
n policy and
the water
quality
planning and
management
regulations
concerning
total
maximum
daily load
Referred to
Subcommittee of
House Committee
on Transportation
and Infrastructure
7/17/2000
S.J.Res. 50
(Same as
H.J.Res. 106)
Sen.
Michael
Crapo (+18)
EPA
Water
pollution
under the total
maximum
daily load
program
Referred to Senate
Committee on
Environment and
Public Works
7/18/2000
H.J.Res. 105
Rep. Marion
Berry (+23)
EPA
Total
maximum
daily loads
under the
Federal Water
Pollution
Control Act
Referred to
Subcommittee of
House Committee
on Transportation
and Infrastructure
106th Congress
CRS-9
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
7/18/2000
H.J.Res. 106
(Same as
S.J.Res. 50)
Rep. Jay
Dickey
EPA
Water
pollution
under the total
maximum
daily load
program
Referred to
Subcommittee of
House Committee
on Transportation
and Infrastructure
3/1/2001
S.J.Res. 6
(same as
H.J.Res. 35;
H.Res. 79
provided for
its
consideration
in the House)
Sen. Don
Nickles (+6)
OSHA/
DOL
Ergonomics
Became P.L. 107-5
on 3/20/2001
3/7/2001
H.J.Res. 35
(same as
S.J.Res. 6)
Rep. Ann
Northrup
(+32)
OSHA/
DOL
Ergonomics
Referred to
Subcommittee of
House Committee
on Education and
Workforce
3/15/2001
H.J.Res. 38
Rep. Ron
Paul (+14)
HHS
Standards for
privacy of
individually
identifiable
health
information
Referred to
Subcommittees of
House Committees
on Energy and
Commerce, Ways
and Means, and
Education and the
Workforce
3/20/2001
S.J.Res. 91
Sen.
Barbara
Boxer (+6)
USAID
Restoration of
the Mexico
City Policy
Referred to
Committee on
Foreign Relations
4/4/2001
H.J.Res. 43
Rep. Joe
Knollenberg
DOE
Residential
central air
conditioners
and heat
pumps
Referred to
Subcommittee of
House Committee
on Energy and
Commerce
4/4/2001
H.J.Res. 44
Rep. Joe
Knollenberg
DOE
Clothes
washers
Referred to
Subcommittee of
House Committee
on Energy and
Commerce
5/22/2001
S.J.Res. 14
Sen.
Barbara
Boxer
EPA
Delay in the
effective date
of new
arsenic
standard
Referred to Senate
Committee on
Environment and
Public Works
107th Congress
CRS-10
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
5/22/2001
S.J.Res. 15
Sen.
Barbara
Boxer
DOE
Postponement
of the
effective date
of energy
conservation
standards for
central air
conditioners
Hearing by Senate
Committee on
Energy and Natural
Resources
(7/13/2001)
5/14/2002
H.J.Res. 92
(Same as
S.J.Res. 37)
Rep. Eliot
Engel (+56)
HHS
Modification
of Medicaid
upper
payment limit
for non-State
government
owned or
operated
hospitals
Referred to
Subcommittee of
House Committee
on Energy and
Commerce
5/14/2002
S.J.Res. 37
(Same as
H.J.Res. 92)
Sen. Paul
Wellstone
(+13)
CMS/
HHS
Modification
of upper
payment limit
for non-State
government
owned or
operated
hospitals
Referred to Senate
Committee on
Finance
10/8/2002
S.J.Res. 48
(Same as
H.J.Res. 119)
Sen. John
McCain
(+10)
FEC
Prohibited
and excessive
contributions:
non-federal
funds or soft
money
Referred to Senate
Committee on
Rules and
Administration
10/8/2002
H.J.Res. 119
(Same as
S.J.Res. 48)
Rep.
Christopher
Shays (+1)
FEC
Prohibited
and excessive
contributions:
non-federal
funds or soft
money
Referred to House
Committee on
House
Administration
H.J.Res. 3
Rep.
William
Thomas
(+106)
CMS/
HHS
Revisions to
payment
policies under
the Medicare
physician fee
schedule for
calendar year
2003 and
other items
Referred to House
Committees on
Energy and
Commerce and
Ways and Means
108th Congress
1/7/2003
CRS-11
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
3/20/2003
H.J.Res. 41
Rep. Lane
Evans
DVA
Acquisition
procedures for
health-care
resources
Referred to House
Committees on
Veterans Affairs
and Government
Reform
5/22/2003
H.J.Res. 58
Rep.
Thomas
Trancredo
(+7)
Treasury
Section
326(a) of
USA
PATRIOT
ACT
(acceptance of
certain
unverifiable
forms of
identification
by financial
institutions)
Referred to
Subcommittee of
House Committee
on Financial
Services
7/15/2003
S.J.Res. 17
(Same as
H.J.Res. 72)
Sen. Byron
Dorgan
(+24)
FCC
Broadcast
media
ownership
Passed Senate
without
amendment by
Yea-Nay vote (5540); not acted on
by the House
10/16/2003
H.J.Res. 72
(Same as
S.J.Res. 17)
Rep.
Maurice
Hinchey
(+2)
FCC
Broadcast
media
ownership
Referred to
Subcommittee of
House Committee
on Energy and
Commerce
4/7/2004
S.J.Res. 31
(Same as H.R.
4236)
Sen. John
Edwards
OCC
Bank
activities and
regulations
Referred to Senate
Committee on
Banking, Housing,
and Urban Affairs
4/7/2004
S.J.Res. 32
(Same as H.R.
4237)
Sen. John
Edwards
OCC
Bank
activities and
regulations
Referred to Senate
Committee on
Banking, Housing,
and Urban Affairs
4/28/2004
H.R. 4236
(Same as
S.J.Res. 31)
Rep. Luis
Gutierrez
(+35)
OCC
Bank
activities and
regulations
Referred to
Subcommittee of
House Committee
on Financial
Services
4/28/2004
H.R. 4237
(Same as
S.J.Res. 32)
Rep. Luis
Gutierrez
(+35)
OCC
Bank
activities and
regulations
Referred to
Subcommittee of
House Committee
on Financial
Services
109th Congress
CRS-12
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
2/14/2005
S.J.Res. 4
(Same as
H.J.Res. 24)
Sen. Conrad
(+11)
Agriculture
Establishment
minimal risk
zones for
introduction
of mad cow
disease
Passed Senate by
52-46 Yea-Nay
vote 3/3/05; not
acted on by House
2/17/2005
H.J.Res. 23
(Same as
S.J.Res. 4)
Rep.
Herseth (+1)
Agriculture
Establishment
of minimal
risk zones for
introduction
of mad cow
disease
Referred to House
Agriculture
Committee. No
action taken
6/29/2005
S.J.Res. 20
(Same as
H.J.Res. 56)
Sen. Leahy
(+31)
EPA
Removal of
coal and oilfired
generating
units from list
of major
sources of
hazardous
pollutants
Defeated in Senate
by 47-51 vote,
9/13/05
6/29/2005
H.J.Res. 56
(Same as
S.J.Res. 20)
Rep.
Meehan
(+4)
EPA
Removal of
coal and oilfired
generating
units from list
of major
sources of
hazardous
pollutants
Referred to
Committee on
Energy and
Commerce. No
action taken
7/30/2007
H.J.Res. 47
Rep. Zoe
Lofgren
(+6)
U.S.
Citizenship
and
Immigration
Services
(DHS)
Adjustment of
Immigration
and
Naturalization
Benefit
application
and petition
fee schedule
Referred to House
Judiciary
Subcommittee on
Immigration, no
action taken
9/11/2007
S.J.Res. 18
(Same as H.J.
Res 49)
Sen. Jeff
Bingaman
(+25)
Centers for
Medicare and
Medicaid
Services
(HHS)
Cost limit for
providers
operated by
units of
government
and other
provisions
under the
Medicaid
program
Referred to Senate
Finance
Committee, no
action taken
110th Congress
CRS-13
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
9/11/2007
H.J.Res. 49
(Same as
S.J.Res. 18)
Rep. Henry
Waxman
Centers for
Medicare and
Medicaid
Services
(HHS)
Cost limit for
providers by
units of
government
and other
provisions
under the
Medicaid
program
Referred to
Subcommittee of
Health of House
Energy and
Commerce, no
action taken
9/24/2007
H.J.Res. 51
Rep. Joe
Baca (+13)
U.S.
Citizenship
and
Immigration
Services
(DHS)
Requiring
certain lawful
permanent
residents to
apply for new
permanent
resident card
Referred to House
Judiciary
Committee, no
action taken.
10/3/2007
H.J.Res. 55
(Same as
S.J.Res. 20)
Rep.
Stephanie
Herseth
Sandlin (+4)
Agriculture
Relating to
importation of
cattle and
beef.
Referred to House
Agriculture
Committee, no
action taken
10/3/2007
S.J.Res. 20
(Same as
H.J.Res. 55)
Sen. Byron
L. Dorgan
(+9)
Agriculture
Relating to
importation of
cattle and
beef.
Referred to Senate
Agriculture
Committee, no
action taken
10/22/2007
S.J.Res. 22
Sen. Max
Baucus
(+30)
Centers for
Medicare and
Medicaid
Services
(HHS)
Medicare
coverage for
the use of
erythropoiesis
stimulating
agents in
cancer and
related
neoplastic
conditions
Referred to Senate
Finance
Committee.
3/5/2008
S.J.Res. 28
(Same as
H.J.Res. 79)
Sen. Byron
Dorgan
(+27)
Federal
Communications
Commission
Broadcast
media
ownership
Sen. Committee on
Commerce,
Science, and
Transportation
ordered the joint
resolution to be
reported favorably
without
amendment on
4/24/08.
CRS-14
Date of
Resolution
Number
Sponsor
Agency
Subject
Last Action
3/13/2008
H.J.Res. 79
(Same as
S.J.Res. 28)
Rep. Jay
Inslee (+8)
Federal
Communications
Commission
Broadcast
media
ownership
Referred to H.
Energy and
Commerce
Committee,
Subcommittee on
Telecommunicatio
n and the Internet.
3/13/2008
H.J.Res. 78
(Same as
S.J.Res. 30)
Rep. Keith
Ellison (+6)
Centers for
Medicare and
Medicaid
(HHS)
State plan
case
management
under
Medicaid
Program
Referred to House
Energy and
Commerce
Committee,
Subcommittee on
Health.
3/13/2008
S.J.Res. 30
(Same as
H.J.Res 78)
Sen.
Barbara
Mikulski
(+18)
Centers for
Medicare and
Medicaid
(HHS)
State plan
case
management
under
Medicaid
Program
Referred to Senate
Finance
Committee.
Note: Not included in this tabulation are bills designed to disapprove agency rules but that were not joint resolutions
under the Congressional Review Act. For example, H.R. 3735, introduced on April 28, 1998, by Rep. Ron Paul, was
intended to disapprove a rule requiring the use of bycatch reduction devices in the shrimp fishery of the Gulf of Mexico.
The bill was in response to Amendment 9 to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico,
issued as a final rule implementing the amendment on April 14, 1998. The bill’s findings section indicated that approval
of the amendment was inconsistent with the requirements of the Magnuson-Stevens Fishery Conservation Act and the
Administrative Procedure Act. The disapproval section indicated that the rule “shall have no force or effect.”
1. On June 22, 2001, Senator Boxer also introduced S.J.Res. 17, which was intended to disapprove a memorandum
issued by the President on March 29, 2001, (66 FR 17301) restoring the Mexico City Policy. However, the
Congressional Review Act does not apply to actions by the President. See text at pp. 16-17.
OSHA’s ergonomics standard had been controversial since the publication of
its initial proposal for rulemaking in 1992 during the Bush Administration. OSHA
circulated a draft proposal in 1994 which was met with strong opposition from
business interests and the formation of an umbrella organization, the National
Coalition on Ergonomics, to oppose its adoption. In 1995 OSHA circulated a
modified draft proposal, particularly with respect to coverage and regulatory
requirements. At the same time, congressional opposition resulted in appropriations
riders that prohibited OSHA from promulgating proposed or final ergonomics
regulations during the fiscal years 1995, 1996, and 1998.12 The riders did not
prohibit OSHA from continuing its development work, however, which included
questions related to whether scientific knowledge of ergonomics was adequate for
rulemaking and whether the cost of implementation of a broad standard would be
extraordinarily burdensome to industry. Congress mandated reports from the
National Academy of Sciences which found a significant statistical link between
12
In a close floor vote, the rider proposed for FY1997 was deleted.
CRS-15
workplace exposures and musculoskeletal disorders, but also noted that the exact
causative factors and mechanisms are not understood. In 2000, congressional
attempts to pass another appropriation rider, as well as stand alone prohibitory
legislation, failed, and on November 14, 2000, OSHA issued its final standard which
became effective on January 16, 2001.13 Most employer responsibilities under the
new standard, however, were not to begin until October, 2001.
As soon as the rule was issued two industry groups filed suit in the Court of
Appeals for the District of Columbia Circuit challenging OSHA’s authority to issue
the rule, its failure to follow proper procedures, the rationality of its provisions, and
the adequacy of its scientific and economics analyses. The intervening 2000
elections also altered the political situation with the election of a President and
effective control of both Houses of Congress in the same political party. Opponents
of the standard introduced a resolution of disapproval under the CRA, S.J.Res. 16,
on March 1, 2001. A discharge petition was filed on March 5, and debate on and
passage of the resolution in the Senate occurred on March 6 by a vote of 56-44. That
evening the House Rules Committee issued a rule for floor action the next day, and
after an hour of debate H.J.Res. 35 was passed on March 7 by a vote of 223-206.
The President signed the nullifying measure into law on March 20, 2002.14
In sum, the veto of the ergonomics standards could be seen as the product of an
unusual, confluence of factors and events: control of both Houses of Congress and
the presidency by the same party, the longstanding opposition by these political
actors, as well as by broad components of the industry to be regulated, to the
ergonomics standards, and the willingness and encouragement of a President seeking
to undo a contentious, end-of-term rule from a previous Administration.
In all other cases, if there is any discernible pattern to the introduced resolutions,
it is to exert pressure on the subject agencies to modify or withdraw the rule, or to
elicit support of Members, which in some instances was successful. For example,
H.J.Res. 67 (1997) was aimed at disapproving an Occupational Health and Safety
Administration (OSHA) rule setting occupational exposure limits on methylene
chloride, a paint stripper used in the furniture and airplane industries. Its sponsor,
Representative Roger Wicker, contended that the rule would harm small businesses
without increasing protections for workers. The disapproval resolution never
received a floor vote. But the Congressman succeeded in effecting a compromise
through the inclusion of provisions in the FY1998 Labor, HHS and Education
appropriations measure15 which required OSHA to provide on-site assistance for
companies to comply with the new rules without fear of penalty. Mr. Wicker is
reported to have stated that he used the disapproval resolution as a vehicle to gather
support from influential Members, including the chairs of the House Appropriations
and Commerce Committees.16
13
65 Fed. Reg. 68261 (2000).
14
P.L. 107-5.
15
P.L. 105-78.
16
See Allan Freedman, “GOP’s Secret Weapon Against Regulations: Finesse,” CQ Weekly,
(continued...)
CRS-16
The disapproval resolution mechanism was effectively utilized to accomplish
the suspension of a highly controversial rulemaking by the then-Health Care
Financing Administration (HCFA). In January 1998, HCFA issued a rule requiring
that home health agencies (HHAs) participating in the Medicare program must obtain
a surety bond that is the greater of $50,000 or 15 percent of the annual amount paid
to the HHA by the Medicare program. In addition, a new HHA entering the
Medicare or Medicaid program after January 1, 1998, had to meet a capitalization
requirement by showing it actually had available sufficient capital to start and operate
the HHA for the first three months. The rule was issued without the usual public
participation through notice and comment and was made immediately effective.
Substantial opposition to the rule quickly surfaced from both surety and HHA
industry representatives. HCFA attempted to remedy the complaints by twice
amending the rule, in March and in June, but was unsuccessful in quelling the
industry concerns. On June 10, Senator Bond, for himself and 13 other co-sponsors,
introduced S.J.Res. 50 to disapprove the June 1 HCFA rule. Within a short period,
the disapproval resolution had garnered 52 sponsors. On June 17, a companion bill,
H.J.Res. 123, was introduced in the House. Thereafter, according to press reports,
members of the staffs of Senators Bond, Baucus, and Grassley (all members of the
Senate Finance Committee with jurisdiction over the agency) met with HCFA
officials and concluded an agreement that (1) the agency would suspend its June 1,
1998 rule indefinitely; (2) a General Accounting Office report would be requested by
the committee that would study the issues surrounding the surety bond requirement;
(3) on completion and issuance of the GAO report, HCFA would work in
consultation with the Congress about the surety bond requirement; and (4) any new
rule would not be effective earlier than February 15, 1999, and would be preceded
by at least 60 days prior notice. The agreement reportedly was memorialized in a
June 26 letter to HCFA signed by Senators Bond, Baucus and Grassley.17 The GAO
report was issued on January 29, 1999, but the rule suspension was never lifted. No
floor vote on the disapproval resolutions occurred in either House.
Another illustration of the manner in which the review mechanism has been
utilized is shown by S.J.Res. 60 (1996), concerning another HCFA rule, this one
dealing with the agency’s annual revision of the rates for reimbursement of Medicare
providers (doctors and hospitals), which normally would have been effective on
October 1, 1996. HCFA, however, submitted the rule to Congress on August 30,
1996, and since it was a major rule, it could not go into effect for 60 days, or until
October 29, which meant there would be a significant loss of revenues because the
differential rate increases could not be imposed for most of the month of October.
Section 801(a)(5), however, provides that if a joint resolution of disapproval is
rejected by one House, “the effective date of a rule shall not be delayed by operation
of this chapter...” On the morning of September 17, 1996, Senator Lott introduced
16
(...continued)
September 5, 1998, at 2318-19 (Freedman).
17
Freedman, supra note 17, at 2319-20.
CRS-17
S.J.Res. 60 and that afternoon, by unanimous consent, the resolution “was deemed
not passed.”18 The HCFA rule went into effect on October 1 as scheduled.
A final interesting utilization of the CRA process that had an impact and
resulted in an unusual outcome, involved President George W. Bush’s restoration,
on February 15, 2001, of President Reagan’s so-called Mexico City Policy, which
limited the use of federal and non-federal monies by non-governmental organizations
(NGOs) to directly fund foreign population planning programs which support
abortion or abortion-related activities. President Clinton had rescinded the 1984
Reagan policy when he took office in January 1993.19 A President’s authority to
determine the terms and conditions on which such NGOs may engage in foreign
population planning programs derives from the Foreign Assistance Act of 1961.20
The provision vests the authority to make these determinations exclusively in the
Chief Executive. President Reagan delegated his authority to make the
determinations to the Administrator of the U.S. Agency for International
Development (AID), who issued regulations that specified the conditions upon which
grants would be given to NGOs. Thus, when the Mexico City Policy was rescinded
in 1993, it was the AID Administrator that did it, at the direction of President
Clinton. When President Bush restored it in 2001, he did it in a directive to the AID
Administrator21 who simply revived the old conditions by internal agency
administrative action.
A number of Senate opponents of the policy filed a disapproval resolution on
March 20, 2001, S.J.Res. 9, to nullify the Administrator’s action, reasoning that it
was a covered rule under the CRA since the implementing action was taken by an
executive agency official and not by the President himself, and thus was reviewable
by Congress.22 The President responded by rescinding his earlier directive to the AID
Administrator and thereafter issuing an executive directive under his statutory
authority implementing the necessary conditions and limitations for NGO grants.23
The presidential action mooted the disapproval resolution, and rendered a subsequent
attempt to veto by S.J.Res. 17 ineffective because the CRA does not reach such
actions by the President.
Discussion
18
See 142 Cong. Rec. S 10723 (daily ed. September 17, 1996).
19
29 Weekly Comp. Pres. Doc. 88 (1993).
20
22 U.S.C. 2151b(b) and b(f)(1) (2000).
21
37 Weekly Comp. Pres. Doc. 216 (2001).
22
Compare Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Specter, 511
U.S. 462, 469 (1994), holding that the President is not subject to APA procedures since he
is not expressly covered by its definition of agency, with Chamber of Commerce v. Reich,
74 F.3d 1311 (D.C. Cir. 1998) and National Family Planning Council v. Sullivan, 979 F.2d
227 (D.C. Cir. 1992), allowing challenges to agency rules that were issued pursuant to
presidential directive.
23
See, Restoration of the Mexico City Policy: Memorandum for the Administrator of the
U.S. Agency for International Development, March 28, 2001, 66 Fed. Reg. 17303-17313
(March 29, 2001).
CRS-18
In the 11-plus years since its passage, the CRA process has been used sparingly.
Several criticisms and questions concerning the process have been raised by those
supporting the wider use of the regulatory disapproving mechanism. These have
included a need for a screening mechanism for submitted rules; the absence of an
expedited procedure in the House of Representatives for consideration of disapproval
resolutions;the deterrent effect of the need for a supermajority to overcome a veto;
the scope of the law’s coverage; the judicial enforceability of its key requirements;
whether a disapproval resolution may be directed at part of a rule; and the effect of
a rule nullification on future agency rulemaking in the same area, which, critics
believe, have introduced uncertainties and impediments to concerning the use of the
process.
1. Lack of a Screening Mechanism to Pinpoint Rules That Need
Congressional Review; Proposals for Change.
Proponents of an expanded use of the CRA process have called for a screening
mechanism that would alert committees to rules that may raise important or sensitive
substantive issues. In this view, the perceived lack of timely substantive information
prevents busy committees from prioritizing such issues. The Comptroller General’s
reports on major rules serve as check lists as to whether legally required agency tasks
have been done and not as substantive assessments of whether they were done
properly or whether the rules accord with congressional intent.
Lack of knowledge of the existence of such sensitive rules by jurisdictional
committees or interested Members is rarely the case. What critics say is absent is indepth scrutiny and analysis of individual rules by an authoritative and presumably
neutral source that may provide the basis for triggering meaningful congressional
review. Opponents reject this argument and often conclude that the act, in its current
form, is exactly what Congress intended, and that lack of action under it does not
equate to lack of knowledge of major rules.
Some support for an independent substantive screening body was signaled by
the introduction by Representative Sue Kelly of H.R. 1704 in the 105th Congress, a
bill that would have established a Congressional Office of Regulatory Analysis.24
The bill was referred to the House Judiciary and Governmental Reform and
Oversight Committees both of which favorably reported differing versions of the
legislation.25 Both versions would have established an independent Congressional
Office of Regulatory Analysis (CORA) to be headed by a director appointed by the
House Speaker and the Senate Majority Leader for a term of four years, with service
in the office limited to no more than three terms. The current review functions of the
Comptroller General under the CRA and the Congressional Budget Office under the
Unfunded Mandates Act of 1995 would have been transferred to the proposed
CORA. The Judiciary Committee’s version, in addition to having the Office make
“an assessment of an agency’s compliance with the procedural steps for ‘major
rules’” required by CRA, directs the proposed CORA to “conduct its own regulatory
24
A companion bill, S. 1675, was introduced in the Senate by Senators Shelby and Bond.
143 Cong. Rec. S1007 (daily ed. February 25, 1998).
25
See H.Rept. 105-441, Parts 1 and 2 (105th Cong., 2d Sess.) (1998).
CRS-19
impact of these ‘major rules.’”26 The bill as reported by the Government Reform
Committee would have allowed the CORA director to use “any data and analyses
generated by the Federal agency and any data of the Office” in analyzing the
submitted rule. Both bills provided that a similar analysis of non-major rules was to
be conducted when requested to do so by a House or Senate Committee or by
individual Members of either House. First priority for the conduct of such analyses
was given to all major rules. Secondary priority was assigned to committee requests.
Tertiary priority was given individual Member requests. Finally, under the Judiciary
Committee version, the report was to be furnished within 45 days after Congress
received notification of the rule; the Governmental Reform bill would have allowed
30 days. H.R. 1704 received no floor action during the 105th Congress.
Critics argue that an independent office of regulatory analysis would serve the
congressional need for objective information necessary to evaluate agency
regulations. In their view, it would also provide credibility and impetus for wider
utilization of the review mechanism. Further, by providing intensive review of
certain non-major rules, the possibility of OIRA “hiding” significant rules by not
designating them as “major” is forestalled. Those opposing the establishment of an
office of this kind would argue that creation of a new congressional bureaucracy for
review purposes would be unnecessarily duplicative of what the agencies have
already done as well as extraordinarily expensive. The requirement of the Judiciary
Committee’s version that a CORA do its own cost-benefit analysis from scratch
could be pointed to as an unknown cost factor, as well as a task that may not be
possible to perform adequately within the allotted 45 days.
Congress agreed upon a limited test of the CORA concept, late in the 106th
Congress, with the passage of the Truth in Regulating Act of 2000.27 That legislation
established a three year pilot project for the General Accounting Office (now
renamed the Government Accountability Office (GAO)) to report to Congress on
economically significant rules. Under this pilot program, whenever an agency
published an economically significant proposed or final rule a chairman or ranking
minority member of a committee of jurisdiction of either House of Congress may
request the Comptroller General (CG) to review the rule. The CG was to report on
each rule within 180 calendar days. The report had to contain an “independent
evaluation” by the CG of the agency’s cost-benefit analysis. We are aware of only
one request ever made pursuant to the provision. That was submitted in January
2001 by the chairs of the jurisdictional committees of the House and Senate with
respect to the Department of Agriculture’s forest planning and roadless area rule.
GAO advised the requesters that although Act authorized $5.2 million per year for
the program, no monies had been appropriated and it could not proceed with the
request. No further action was taken on the request and Congress never enacted an
appropriation, thereby forestalling implementation of the project. It may be noted
that the 180-day reporting period did not mesh exactly with the time period under the
CRA for consideration of rules subject to resolution of disapproval, although
completed requests for analyses of proposed rules might coincide with such reviews.
In any event, the pilot program established by the act expired in January 2004.
26
Section 4 (a)(3)(A).
27
P.L. 106-312, 114 Stat. 1248-50, 5 U.S.C. 801 note.
CRS-20
In the 109th Congress, Representative Sue Kelly introduced H.R. 1167, which
would have made permanent the authority of Congress to request GAO to perform
regulatory analyses. The proposed new Truth in Regulating Act (TIRA), if enacted
as a permanent responsibility of the GAO, did not appear to provide a specific
appropriation to require agency performance of the vested task as was the case when
it was previously established as a “pilot project.” The act would have, in effect,
established an unfunded mandate. Although GAO currently does (and historically
has always done) some reviews of agencies’ rules at Members’ requests under its
current appropriations, both the volume and nature of the reviews under this proposal
would likely have been substantially different and might have affected its ability to
conduct other agency reviews. A similar bill, H.R. 725, section 5, would also have
made TIRA permanent, but would have authorized up to $5 million for the reviews.
In an apparent attempt to avoid the criticisms of the CORA model and to
remedy some of the perceived impediments to the effectiveness of the CRA,
Representative Ginny Brown-Waite introduced H.R. 3356, the Joint Administrative
Procedures Committee Act of 2003, in the 108th Congress which would have
amended the CRA by establishing a joint congressional committee with broad
authority to investigate, evaluate and recommend actions with respect to the
development of proposed rules, the amendment or repeal of existing rules, and
disapproval of final rules submitted for review under the CRA.28 The responsibilities
would have been in addition to the current statutory framework providing for review
of new rules that are required to be reported. A new provision would permit the joint
committee to recommend disapproval of new rules to jurisdictional committees. The
Judiciary Committee referred it to its Subcommittee on Commercial and
Administrative Law. No action was taken by either Committee. Representative
Brown-Waite’s proposal was reintroduced in the 109th Congress as H.R. 3148 but
received no action.
Another bill, H.R. 576, introduced by Representative Ney in the 109th Congress,
was similar in many respects to H.R. 3148, but quite different in certain fundamental
ways. Both would have created a 24 member House-Senate joint committee capable
of holding hearings, requiring the attendance of witnesses, and making rules
regarding its organization and procedures. Both also provided for an expedited
consideration procedure in the House. Significant differences appear, however, with
respect to the roles assigned to the joint committees. Under H.R. 3148, the current
process established by the CRA for congressional review of new agency rules would
have been maintained: required reports on new rulemakings would be submitted to
each House and such reports sent to the jurisdictional committees of each House for
action. Rules required to be reported would also be sent to the joint committee.
Special rules were provided for discharge from committees in the Senate and, under
proposed H.R. 3148, from House committees. Expedited procedures are in effect for
floor proceedings in each House. The only part to be played by the joint committee
in this rule review process under H.R. 3148 would have been to recommend to
jurisdictional committees that certain submitted new rules be subject to disapproval
resolutions. Deference to the current roles of jurisdictional committees was also
28
See introductory remarks on the measure at 147 Cong. Rec. H 2454 (daily ed. October 21,
2003).
CRS-21
maintained under H.R. 3148 with respect to the new duties given to the joint
committee to selectively review existing federal agency rules in effect before the
enactment of the CRA and existing major rules of federal agencies promulgated since
April 1996.
Under H.R. 576, the joint committee, rather than the jurisdictional committees
of each House, would have received the report of covered rules submitted for review
by federal agencies as well as cost-benefit analyses and other materials.
Jurisdictional committees would receive copies of these materials from the joint
committee. GAO was to submit its report on major rules to the joint committee, not
the jurisdictional committees concerned. Major rules could have taken effect no
earlier than 60 days after the rule was published in the Federal Register or is received
by the joint committee. Joint resolutions of disapproval ere to be reported by the
joint committee to the respective Houses for action. The joint committee could also
report “by bill ... recommendations with respect to matters within the jurisdiction of
their respective Houses which are referred to the joint committee or otherwise within
the jurisdiction of the joint committee.” It would appear, then, that the joint
committee would have had the predominant role in the congressional review process,
which might inject a highly controversial issue - - diminution of the role of
jurisdictional committees.
A third bill introduced in the 109th Congress was H.R. 931, by Representative
Hayworth, which would have prohibited any regulation proposed by a federal agency
from going into effect until a bill enacted under expedited consideration procedures
applicable to to the rule was signed into law. The term “regulation” was given the
broad meaning of the term “rule” as defined in 5 U.S.C. 551(4). The bill did not
specifically reference the current CRA process. In fact, it would have superceded it
and required rulemaking agencies to seek approval of all covered “regulations.”
There was no provision for congressional processing in a timely and expeditious
manner a potentially huge member proposed regulations.
2. Lack of an Expedited House Procedure.
Those unsatisfied with the current procedure argue that the current absence of
an expedited consideration procedure in the House of Representatives may well be
a factor affecting use of the process in that body since, as a practical matter, it will
mean engaging the House leadership each time a rule is deemed important enough
by a committee or group of Members to seek speedy access to the floor. In view of
the limits both on floor time and the ability to gain the attention of the leadership, it
is argued that only the most well situated in the body will be able to gain access
within the limited period of review.29 It is also maintained that a perception that no
action will be taken in the House might deter Senate action.
3. The Deterrent Effect of the Ultimate Need for a Supermajority to
Veto a Rule.
29
The experience with respect to the repeal of the ergonomics standard, discussed supra at
12-13, would appear to bear this out.
CRS-22
A consideration that critics maintain limits expanded use of the full CRA
review mechanism has been the realization that any joint resolution disapproving a
rule that does not have the support of the Administration would be vetoed and require
a two-thirds vote in each House to override. The deterrent potential of the need for
a supermajority in each House to overcome a presidential veto is likely to be
significant, unless the object of the exercise is simply to provide the impetus for
informal accommodations, such as occurred in the HCFA surety bond matter, or to
influence Members to support alternative legislation. Critics assert that a realization
by agencies over time that passage of a disapproval resolution is highly unlikely
could substantially reduce the efficacy of such a threat. Additionally, they maintain
that a possible consequence of such an assumption is that agencies will not factor in
congressional disapproval as part of the rule development process.30. Since the
ergonomics veto, 19 resolutions of disapproval with respect to 14 rules have been
introduced, only one of which has been acted upon ( by one House),31 which some
see as a return to the prior practice of using the mechanism to facilitate bargaining.
Thus, even with the disapproval of the ergonomics standard, critics are
concerned about the possible effect of the supermajority requirement. Some have
proposed a multi-tiered disapproval mechanism. That is, instead of all rules, major
or non-major, being treated equally in that they can only be overturned by a joint
resolution of disapproval, some rules might be designated for more selective, special
review. For example, some argue that major or significant rules might be subject to
a joint resolution of approval. Under such a scheme a major or significant rule
would not become effective unless a joint resolution approving it passed both Houses
within a specified period of time.32 To make such a scheme effective someone or
some body, would need the authority to designate which rules are “major” or
“significant” and thereby subject to the affirmative approval requirement. The
burden for supporting and justifying such rules would fall on the promulgating
agencies. All other rules would be subject to disapproval resolutions. Another
proposal is to subject all covered rules to congressional approval and establish an
expedited procedure whereby non-controversial rules may be sped through leaving
only a few for close consideration.33
4. The Reluctance to Disapprove an Omnibus Rule Where Only
One Part of the Rule Raises Objection.
30
See, Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency
Rules, 51 Duke L.J. 1059, 1089 (2001).
31
S.J.Res. 17, dealing with the FCC’s media ownership rule, which passed in the Senate but
was not acted upon in the House.
32
See e.g., Reorganization Act Amendments of 1984, providing that both Houses of
Congress had to pass a joint resolution approving a reorganization plan within 90 days of
continuous session after the date of presidential submission or else it is deemed disapproved.
5 U.S.C. 906 (a) (1994).
33
Two bills introduced in the 106th Congress to revise the CRA utilized the joint resolution
of approval approach. See S. 1348, 106th Cong., 1st Sess. (1999)(Sen. Brownback) S. 2670,
106th Cong., 2nd Sess. (2000)(Sen. Thomas). A similar approach was reflected in H.R. 110
introduced by Rep. Hayworth (with 25 co-sponsors) in the 108th Congress.
CRS-23
Section 808 of the review provision sets forth the mandatory text of any joint
resolution of disapproval: “That Congress disapproves the rule submitted by the
________ relating _________, and such rule shall have no force or effect. (The
blank spaces being appropriately filled in).” The quoted text refers to “the rule” and
“such rule,” indicating a rule in its entirety. The experience of 33 joint resolutions
of disapproval thus far introduced is that the first blank is filled with the name of the
promulgating agency and the second with a generic title or description of the rule.34
Similarly, the text of the review provision refers to “such rule,” “a rule,” or “the
rule,” with no language expressly referring to a part of any rule under review. The
procedure leading to a vote on the proposed disapproval resolution allows for no
amendments, and the final vote is up or down on the joint resolution as introduced.
The legislative history of the provision is similarly uniform in using language
that would ordinarily indicate a reference to a submitted rule in its entirety, except
in one instance. During a discussion of the Section 802 procedure that would obtain
when one House completes its action on a joint resolution and sends to it to the other
House before the second House has yet to complete any action, the following
comment is made:
. . .Subsection 802(f) sets forth one unique provision that does not expire in
either House. Subsection 802(f) provides procedures for passage of a joint
resolution of disapproval when one House passes a joint resolution and transmits
it to the other House that has not yet completed action. In both Houses, the joint
resolution of the first House to act shall not be referred to a committee but shall
be held at the desk. In the Senate, a House-passed resolution may be considered
directly only under normal Senate procedures, regardless of when it is received
by the Senate. A resolution of disapproval that originated in the Senate may be
considered under the expedited procedures only during the period specified in
subsection 802(e). Regardless of the procedures used to consider a joint
resolution in either House, the final vote of the second House shall be on the
joint resolution of the first House (no matter when that vote takes place). If the
second House passes the resolution, no conference is necessary and the joint
resolution will be presented to the President for his signature. Subsection 802(f)
is justified because subsection 802(a) sets forth the required language of a joint
resolution in each House, and thus, permits little variance in the joint resolutions
that could be introduced in each House.35 (Emphasis supplied).
34
E.g., S.J.Res. 50 and H.J.Res. 123, “relating to surety bond requirements for home health
agencies under the medicare and medicaid programs....”
35
Joint Explanatory Statement of House and Senate Sponsors, 142 Cong. Rec. E 571, at E
577 (daily ed. April 19, 1996); 142 Cong. Rec. S 3683, at S 3686 (daily ed. April 18,
1996)(Legislative History)(emphasis added). These identical detailed explanations by the
legislative sponsors of the intent and scope of the CRA’s provisions appeared in the daily
editions of the Congressional Record some three weeks after SBREFA was signed into law.
In the absence of committee hearings and the sparse commentary during floor debate, these
explanations represent the most authoritative contemporary understanding of the provisions
of the law. It is, however, post-enactment legislative history and does not carry the weight
that committee report explanations and floor debates provide. As one court dealing with the
interpretation of a CRA provision stated, the post-enactment legislative history “buttresses
the ‘limited scope’ of the CRA judicial review provision” but warned that “the lack of
(continued...)
CRS-24
The last two sentences are seen by some as raising uncertainty. The next to last
sentence would appear to contemplate the possibility of a conference to resolve
differences in resolutions. The last sentence minimizes what those differences could
be. Some have suggested that the explanation contemplates that parts of rules may
be the subject of disapproval resolutions, arguing that the framers of the provision
would have known that many rules are complex and contain a variety of provisions,
only one or a few of which may be objectionable, and would not have required a
whole rulemaking to be brought down simply because of one offending portion out
of many. It has also been argued that in light of the Section 801(b)(2) prohibition
against agency issuance of a rule “in substantially the same form” after passage of a
disapproval resolution unless Congress by subsequent law authorizes it, not allowing
rejection of part of a rule would have a draconian result.
An up or down vote on the entire rule would appear to have been the intent of
the framers of the review provision. The language and structure of the provision, and
the supporting explanation of the legislative history, contemplates a speedy,
definitive and limited process. It is not unlike the legislative processes created for
congressional actions dealing with military base closings,36 international trade
agreements,37 and presidential reorganization plans,38 among others. Each dealt with
complex, politically sensitive decisions which allowed only an up or down vote by
the Congress on the entire package presented. It was understood that piecemeal
consideration would delay and perhaps obstruct legislative resolution of the issues
before it. For similar reasons, the statutory structure and legislative history of the
review provision strongly indicate that Congress intended the process to focus on
submitted rules as a whole and not to allow veto of individual parts. Perhaps a
proper reading of the quoted portion of the legislative history is that it was
contemplating the possibility that the blank to be filled in after “relating to” might
have different generic descriptions of the rule subject to disapproval. A broader
reading of these sentences would not otherwise appear warranted by either the
legislative language itself or the rest of the explanatory legislative history.
As a practical matter, if this reading is correct it may be a factor in the limited
use of the mechanism. As indicated, nullifying a rule means disabling an agency
35
(...continued)
formal legislative history for the CRA makes reliance on this joint statement troublesome.”
See United States v. Southern Indiana Gas & Electric Co, discussed infra at note 54 and
accompanying text. The permanent edition of the Congressional Record for the 104th
Congress places the Senate sponsors Joint Explanation at April 18, 1996, the same date it
appeared in daily edition. See 142 Cong. Rec. 8196-8201. The House sponsors’ Joint
Explanation, which originally appeared in the daily edition of April 19, 1996, is now placed
during the floor debate on SBREFA on March 28, 1996, the date of its passage. See 142
Cong. Rec. 6922-6930. There is no explanation for the earlier placement. As a
consequence, we have determined to continue to treat the Joint Explanation as postenactment legislative history. See discussion at infra, at pp. 27-33.
36
Defense Base Closure and Realignment Act of 1990, P.L. 101-510, sec. 2908 (b) 104 Stat.
1808, in note following 10 U.S.C. 2687 (2000).
37
See, 19 U.S.C. 2191-2193 (2000).
38
See, e.g., Reorganization Act of 1984, 5 U.S.C. 909-912 (2000).
CRS-25
from regulating in the area covered by the rule unless Congress passes further
authorization legislation, a significant consequence of any disapproval action. On the
other hand, expressly authorizing nullification of portions of a rule might allow
competing disapproval resolutions within each House and the certainty of a long,
drawn out conference with the possibility of no agreement.
5. The Uncertainty of Which Rules Are Covered by the CRA.
The drafers of the congressional review provision arguably adopted the broadest
possible definition of the term “rule” when they incorporated Section 551(4) of the
APA. As indicated previously,39 the legislative history of Section 551(4) and the case
law interpreting it make clear that it was meant to encompass all substantive
rulemaking documents — these may include policy statements, guidances, manuals,
circulars, memoranda, bulletins and the like — which as a legal or practical matter
an agency wishes to make binding on the affected public.
The legislative history of the CRA emphasizes that by adoption of the Section
551 (4) definition of rule, the review process would not be limited only to coverage
of rules required to comply with the notice and comment provisions of the APA or
any other statutorily required variations of notice and comment procedures, but
would rather encompass a wider spectrum of agency activities characterized by their
effect on the regulated public: “The committee’s intent in these subsections is . . . to
include matters that substantially affect the rights or obligations of outside parties.
The essential focus of this inquiry is not on the type of rule but on its effect on the
rights and obligations of non-agency parties.”40 The drafters of the legislation
indicated their awareness of the practice of agencies avoiding the notification and
public participation requirements of APA notice-and-comment rulemaking by
utilizing the issuance of other documents as a means of binding the public, either
legally or practically,41 and noted that it was the intent of the legislation to subject
just such documents to congressional scrutiny:
. . . The committees are concerned that some agencies have attempted to
circumvent notice-and-comment requirements by trying to give legal effect to
general statements of policy, “guidelines,” and agency policy and procedure
manuals. The committees admonish the agencies that the APA’s broad definition
of “rule” was adopted by the authors of this legislation to discourage
circumvention of the requirements of chapter 8.42
It is likely that virtually all the 45,433 non-major rules thus far reported to the
Comptroller General have been either notice and comment rules or agency
39
See footnotes 1-4, supra, and accompanying text.
40
Join Explanatory Statement of House and Senate sponsors, supra n. 35, at E 579, S 3687.
41
This practice has been long recognized and criticized in administrative law commentaries.
See, e.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals,
and the Like — Should Federal Agencies Use Them To Bind The Public?, 41 Duke L.J.
1311 (1992). Cf. also, General Accounting Office, Federal Rulemaking: Agencies Often
Published Final Actions Without Proposed Rules, GAO/GGD-98-126 (August 1998).
42
Legislative History, supra n. 35, at E 578, S 3687.
CRS-26
documents required to be published in the Federal Register. The legislation’s
sponsors indicated that perhaps thousands of covered rules have not been submitted
for review.43 Defining an exact number is difficult since such covered documents are
rarely published in the Federal Register and thus may come to the attention of
committees or Members serendipitously or through complaints of interest groups.
Nine agency actions came to the attention of committee chairmen and Members
and were referred to the Comptroller General for determinations whether they were
covered rules. In six of the nine cases the CG determined the action documents to
be covered rules. For example, in a letter to the Honorable John D. Rockefeller, IV,
Chairman, Senate Subcommittee on Health Care, Committee on Finance, and the
Honorable Olympia Snowe, Ranking Minority Member, Senate Subcommittee on
Health Care, Committee on Finance, B-316048 April 17, 2008 the GAO General
Counsel stated that an August 17, 2007 letter issued by the Centers for Medicare and
Medicaid Services (CMS) to state officials concerning the State Children’s Health
Insurance Program (SCHIP) was “a rule that must be submitted for review under the
CRA before it can take effect because it is a statement of general applicability and
future effect designed to implement, interpret, or prescribe law or policy with regard
to the SCHIP program.” See also, a letter to Honorable Lane Evans, Ranking
Minority Member, House Committee on Veterans’ Affairs, B-292045 (May 19,
2003) (Department of Veterans Affairs memorandum terminating the Department’s
Vendee Loan Program is not a rule that must be submitted to Congress because it is
exempt under Section 804(3)(B) and (C) as a rule relating to “agency management”
or “agency organization, procedure, or practice that does not substantially affect the
rights or obligations of non-agency parties.”); letter to Honorable Ted Strickland, B291906 (February 28, 2003) (Department of Veterans Affairs memorandum
instructing all directors of health care networks to cease any marketing activities to
enroll new veterans in such networks is excluded from CRA coverage by Section
804(3)(C) which excludes “any agency rule of agency organization, procedure, or
practice that does not substantially affect the rights or obligations of non-agency
parties.”); letter to Honorable Doug Ose, Chairman, House Subcommittee on Energy
Policy, Natural Resources, and Regulatory Affairs, Committee on Government
Reform, B-287557 (May 14, 2001)(Department of Interior’s Fish and Wildlife
Service’s Trinity River “Record of Decision” is a rule covered by the CRA because
it is an agency statement of general applicability and future effect designed to
implement, interpret, or prescribe law or policy and is an “agency action[] that
substantially affect[s] the rights and obligations of outside parties.”); letter to the
Honorable James A. Leach, Chairman, House Banking Committee, B-286338
(October 17, 2000)(Farm Credit Administration’s national charter initiative held to
be a rule under the CRA); letter to Honorable David M. McIntosh, Chairman,
Subcommittee on National Economic Growth, Natural Resources, and Regulatory
43
An investigation by the House Subcommittee on National Economic Growth, Natural
Resources, and Regulatory Affairs (Government Reform) which revealed that 7,523
guidance documents issued by the Department of Labor, the Environmental Protection
Agency, and the Department of Transportation which were of general applicability and
future effect had not been submitted for CRA review during the period March 1996 through
November 1999. See “Non-Binding Legal Effect of Agency Guidance Documents,”
[http://www.congress.gov/cgi-lis/cpquery/T?&report=hr1009&dbname=cp106&] H.Rept.
106-1009, 106th Cong., 2nd Sess. (2000).
CRS-27
Affairs, House Committee on Government Reform and Oversight, B-281575
(January 20, 1999) (EPA “Interim Guidance for Investigating Title VI Administrative
Complaints Challenging Permits” held to be covered because it created new,
mandatory steps in the procedure for handling disparate impact assessments which
gave recipients new rights they did not previously possess for obtaining complaint
dismissals, a substantive alteration of the previous regulation.); letter to Honorable
Conrad Burns, B-278224 (November 10, 1997) (the American Heritage River
Initiative announced by the Council on Environmental Quality was not a covered rule
because it was established by presidential executive order and direction and the
President is not an “agency” under the APA and is not subject to the provisions of the
APA); letter to Honorable Ted Stevens, Chairman, Senate Appropriations
Committee, et al, B-275178 (July 3, 1997) (Tongass National Forest Land and
Resources Management Plan held an agency statement of general applicability and
future effect that implements, interprets, and prescribes law and policy); letter to
Honorable Larry Craig, Chairman, Senate Committee on Energy and Resources, B274505 (September 16, 1996) (memorandum of Secretary of Agriculture concerning
the Emergency Salvage Timber Sale Program held to be a covered rule because it is
of general applicability and interprets and implements the statutory program).
The GAO opinion on the American Heritage River Initiative rests its rationale
that a presidential directive to an agency that results in substantive action by that
agency is not thereby covered by the CRA based on the Supreme Court’s rulings in
Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Spector, 511
U.S. 462, 469 (1994). In light of Chamber of Commerce v. Reich, 74 F. 3d 1322
(D.C. Cir. 1996) and National Family Planning v. Sullivan, 979 F. 2d 227 (1992),
which successfully challenged substantive changes in rules that were directed by a
presidential directive, the GAO General Counsel’s conclusions may be questioned.
Also, the General Counsel’s analysis in its February 28, 2003 opinion
concluding that a Department of Veterans Affairs (DVA) memo terminating a longtime veterans health outreach program was an exempt agency practice that had no
substantial effect on the rights of non-agency parties may be questioned. In contrast
with its May 19, 2004, opinion dealing with a termination of a DVA vendee loan
program, where it closely examined the statutory basis of the loan program and found
that it was established on the basis of discretionary authority of the Secretary and
provided no direct benefits to veterans, the General Counsel made no mention that
the Congress had charged the Secretary of DVA “with the affirmative duty of seeking
out eligible veterans and eligible dependants and providing them” with federal
benefits and services. Representative Strickland joined with the Vietnam Veterans
of American in a suit seeking declaratory and injunctive relief to restore the program.
In Vietnam Veterans of America v. Principi, 2005 WL 901133 (D.D.C. March 11,
2005), the district court found that “[u]nder 38 U.S.C. 7721, 7722, and 7227,
Congress charges the Secretary of the Department of Veterans Affairs with the
affirmative duty to ‘provide outreach services.’ This duty is not discretionary but
must be done in accordance with Congress’ wishes.” The court concluded, however,
that since Congress appropriated a lump-sum for both outreach services and health
care services, and the record showed that some monies had been expended for
outreach services, Congress meant to allow the Secretary the discretion to decide
“the manner in which [outreach services] are to be provided.” The critique here is
that the Comptroller General’s failure to examine the Secretary’s duty under the
CRS-28
statute in question eliminated the possibility finding a substantial effect of the
agency’s action on the rights or obligations of non-agency parties. It is interesting
to note that subsequent to the CG’s decision and the filing of the lawsuit, Congress
enacted a limitation on the Fiscal Year 2004 VA appropriation stating, ‘[n]one of the
funds made available may be used to implement any policy prohibiting the Directors
of the Veterans Integrated Service Networks from conducting outreach or marketing
to enroll new veterans within their respective networks,” a possible indication that
Congress thought the controverted policy could be having an impact on potential
beneficiaries. See P.L. 108-199, H.R. 2673, sec. 418 (2004).
Believing such instances to be only a small portion of unreported agency
actions, GAO, at the behest of the House Government Reform and Oversight
Subcommittee on National Economic Growth, Natural Resources, and Regulatory
Affairs, engaged in discussions with the Office of Management (OMB) during 1998
for the creation of a uniform reporting form for use by agencies in reporting covered
rules to the CG, and for the promulgation of an OMB guidance document covering
such matters under the review provision as the definition of a covered rule, reporting
requirements, the good cause exemption, and the consequences of failing to report
a rule, among others. The failure to issue such guidance prompted insertion of the
following directive in the FY1999 appropriation for OMB: “OMB is directed to
submit a report by March 31, 1999, to the Committees on Appropriations, the Senate
Committee on Governmental Affairs, and the House Committee on Government
Reform and Oversight that . . . issues guidance on the requirements of 5 U.S.C. Sec.
801 (a) (1) and (3); sections 804 (3), and 808 (2), including a standard new rule
reporting form for use under section 801 (a)(1)(A)-(B).”44 OMB in the view of the
Subcommittee, “has failed to to substantially comply with that statutory directive.”45
6. The Uncertainty of the Effect of an Agency’s Failure to Report a
Covered Rule to Congress.
Section 801(a)(1)(A) of the CRA provides that “[b]efore a rule can take effect,”
the Federal agency promulgating such rule shall submit to each House of Congress
and the Comptroller General a report containing the text of the rule, a description of
the rule, including whether it is a major rule, and its proposed effective date. Section
805 states that “no determination, finding, action or omission under this chapter shall
be subject to judicial review.” The Department of Justice (DOJ) has broadly hinted
that the language of Section 805 “precluding judicial review is unusually sweeping”
so that it would presumably prevent judicial scrutiny and sanction of an agency’s
failure to report a covered rule.46 DOJ has succeeded with its preclusion argument
in two federal district court rulings. Later the rationale of those opinions was called
into question and rejected by a third district court.
44
P.L. 105-277, Division A, title III.
45
See [http://www.congress.gov/cgi-lis/cpquery/T?&report=hr1009&dbname=cp106&]
H.Rept. 106-1009, supra n. 44 at 4-5.
46
See letter dated June 11, 1997 to the Honorable Lamar Smith, Chairman, Subcommittee
on Immigration and Claims, Senate Judiciary Committee, from Andrew Fois, Assistant
Attorney General, Office of Legislative Affairs, DOJ, and accompanying analysis dated June
10, 1997, at pp 9-11 (DOJ Memorandum).
CRS-29
In Texas Savings and Community Bankers Assoc. v. Federal Housing Finance
Board,47 three thrift associations and two of their trade associations sued the Federal
Housing Finance Board challenging one of its policies regarding the home mortgage
lending industry. The plaintiff’s argued, inter alia, that the policy was a rule required
to be reported to Congress under the CRA and the failure to report it precluded its
enforcement. The government argued that Section 805 was a blanket preclusion of
judicial review. In response to plaintiff’s contention that Section 805 only precluded
review of any “determination, finding, or omission” by Congress, the court held that
“the statute provides for no judicial review of any ‘any determination, finding, action
or omission under this chapter,’ not ‘by Congress under this chapter.’ The court must
follow the plain English. Apparently, Congress seeks to enforce the [CRA] without
the able assistance of the courts.”48 The court made no reference to the scheme of the
act or its legislative history.
The Texas district court’s “plain meaning” rationale was cited with approval by
an Ohio district in United States v. American Electric Power Service Corp.49 That
case was one of many involving extensive litigation by the Environmental Protection
Agency (EPA), begun in the mid-1990’s to establish the extent to which a power
plant or factory may alter its facilities or operations without bringing about a
“modification” of that emission source so as to trigger the Clean Air Act’s New
Source Performance Standards and pre-construction “new source review.”50 Among
the issues common in these cases, and raised in this case, was whether EPA’s
determination to initiate litigation enforcement after many years of no enforcement
was a substantive change that had to be reported to Congress under the CRA. It was
among 123 affirmative defenses raised by defendants, nine coal-fired power plants
in Ohio, Virginia, and West Virginia, which the Government moved to dismiss.
Citing the Texas Savings case approvingly, the district court agreed “that the
language of Section 805 is plain” and that “[d]eparture from the plain language is
appropriate in the ‘rare cases [in which] the literal application of a statute would
produce a result demonstrably at odds with the intention of its drafters ... or when the
statutory language is ambiguous.’... In all other cases, the plain meaning of the
statute controls.”51 The court did not indicate whether it had attempted to discern
whether there was any evidence of congressional intent at odds with the court’s plain
meaning reading. It did, however, provide an alternative rationale: “Furthermore,
this Court is not convinced that the instant enforcement action amounts to
47
1998 U.S. Dist. LEXIS 13470, 1998 WL842 181 (W. Texas), aff’d 201 F.3d 551 (5th Cir.
2000).
48
Id. at note 15.
49
218 F.Supp. 3d 931 (S.D. Ohio 2002).
50
For background on the legal development of the issue, see CRS Report RS21424, Air
Pollution: Legal Perspective on the ‘Routine Maintenance’ Exception to New Source
Review, by Robert Meltz (Archived).
51
218 F.Supp. 2d at 949.
CRS-30
rulemaking which would be covered by 5 U.S.C. 801 et. seq., in the first instance,”
without elaboration.52
In United States v. Southern Indiana Gas and Electric Co.,53 the court faced the
same issue in a motion for summary judgment by the power company defendant.
Rejecting the Texas Savings and American Electric Power precedents, it found that
Section 805 is ambiguous and susceptible to two possible meanings: that Congress
did not intend for any court review of an agency’s compliance with the CRA or that
Congress only intended to preclude judicial review of its own determination,
findings, actions or omissions made under the CRA after a rule had been submitted
to it for review. Adopting the first alternative, argued for by the Government and
adopted by the Texas Savings and American Electric Power courts, would, according
to the court, allow agencies “to evade the strictures of the CRA by simply not
reporting new rules and courts would be barred from reviewing their lack of
compliance. This result would be at odds with the purpose of the CRA, which is to
provide a check on administrative agencies’ power to set policies and essentially
legislate without Congressional oversight. The CRA has no enforcement mechanism,
and to read it to preclude a court from reviewing whether an agency rule is in effect
that should have been reported would render the statute ineffectual.”54 The court
found that the post-enactment legislative history “buttresses the ‘limited scope’ of the
CRA’s judicial review provision” but was careful to acknowledge that “the lack of
formal legislative history for the CRA makes reliance on this joint statement
troublesome.” However, the court made it clear that “this court reached its
conclusion about the limited scope of the judicial review provision of the CRA based
on the text of the statute and overall purpose of the act. The legislative history only
serves to further reinforce the Court’s conclusion.”55
It is certainly arguable that the Southern Indiana court’s view of the limited
preclusiveness of Section 805 is plausible. A potentially stronger case can be made
from a closer analysis of the text and structure of the act taken as a whole. Although
the court was correct as a general matter that post- enactment legislative history
normally is given less weight, there are a number of Supreme Court rulings that
recognize that under certain circumstances, arguably applicable here,
contemporaneous explanations of key provisions’ intent have been found to be an
“authoritative guide” to a statute’s construction. In one instance the Court relied on
an explanation given eight years after the passage of the legislation.
The plain, overarching purpose of the review provision of the CRA was to
assure that all covers final rulemaking actions of agencies would come before
Congress for scrutiny.56 The scheme provides for the delayed effectiveness of some
52
Id.
53
2002 U.S. Dist. LEXIS 20936; 55 ERC (BNA) 1597 (D.C. S.D. Ind. 2002).
54
2002 U.S. Dist. LEXIS 20936 at 13-14.
55
Id. at 15-16 and note 3.
56
“This legislation establishes a government-wide congressional review mechanism for most
new rules. This allows Congress the opportunity to review a rule before it takes effect and
(continued...)
CRS-31
rules deemed innately important (“major rules”), Section 801(a)(3), and temporarily
waives the submission requirement of Section 801 for rules establishing, modifying,
opening, closing or conducting a regulatory program for a commercial, recreational,
or subsistence activity related to hunting, fishing, or camping, or for a rule an agency
“for good cause” finds that notice and public procedure are impractical, unnecessary,
or contrary to the public interest. Section 808. Rules promulgated pursuant to the
Telecommunications Act of 1996 are excluded from the definition of “major rule”.
But all such rules must ultimately be submitted for review. And while the scheme
anticipates that some (or even most) rules will go into effect before a joint resolution
of disapproval is passed, the law provides that enactment of a joint resolution
terminates the effectiveness of the rule and that the rule will be treated as though it
had never taken effect. Sections 801(b)(1), 801(f). Further, a rule that has been
nullified cannot be reissued by an agency in substantially the same form unless it is
specifically authorized to do so by law after the date of the disapproval. Section
801(b)(2).
The review scheme also requires a variety of actions by persons or agencies in
support of the review process, and time for such actions to be scrutinized by both
Houses to implement the scheme. Thus, the Comptroller General must submit a
report to Congress on each major rule submitted within 15 calendar days after its
submission or publication of the rule (Section 801(a)(2)(A)); the Administrator of
OIRA determines whether a rule is a “major rule” (Section 804(2)); and after a rule
is reported the Senate has 60 session days, and the House 60 legislative days, to pass
a disapproval resolution under expedited procedures. Section 802. But Congress has
preserved for itself a period of review of at least 60 session or legislative days.
Therefore, if a rule is reported within 60 session days of the Senate (or 60 legislative
days of the House) prior to the date Congress adjourns a session of the Congress, the
period during which Congress may consider and pass a joint resolution of
disapproval is extended to the next succeeding session of the Congress. Section
801(d)(1).
Thus the statutory scheme appears geared toward congressional review of all
covered rules at some time; and a reading of the statute that allows for easy
avoidance would seem to defeat that purpose. Interpreting the judicial review
preclusion provision to prevent court scrutiny of the validity of administrative
enforcement of covered but non-submitted rules appears to be neither a natural nor
warranted reading of the provision. Section 805 speaks to “determination[s],
finding[s], action[s], or omission[s] under this chapter,” a plain reference to the
range of actions authorized or required as part of the review process. Thus Congress
arguably did not intend, as is more fully described below, to subject to judicial
scrutiny, its own internal procedures, the validity of Presidential determinations that
rules should become effective immediately for specified reasons, the propriety of
OIRA determinations whether rules are major or not, or whether the Comptroller
General properly performed his reporting function. These are matters that Congress
can remedy by itself. From one perspective, the potential of court invalidation of
56
(...continued)
to disapprove any rule to which Congress objects.” Legislative History, supra note 35, at E
575 and S 3683.
CRS-32
enforcement actions based on the failure to submit covered rules, is necessary to
assure compliance with submission requirements. If Section 805 is read so broadly,
it would arguably render ineffective as well the Section 801(b)(2) prohibition against
an agency promulgating a new rule that is “substantially the same” as a disapproved
rule unless it “is specifically reauthorized by a law enacted after” the passage of a
disapproval resolution. It is more than likely that a determination whether a new or
reissued rule is “substantially the same” as a disapproved rule is one that a court will
be asked to make.57 Congress appears to have contemplated (and approved) judicial
review in this and other situations when it provided in Section 801(g) that “[i]f
Congress does not enact a joint resolution of disapproval under section 802
respecting a rule, no court or agency may infer any interest of the Congress from any
action or inaction of the Congress with regard to such rule, related statute, or joint
resolution of disapproval.”
The legislative history of the review provision confirms this view of the limited
reach of the judicial review preclusion language. A key sponsor of the legislation,
Representative McIntosh, explained during the floor debate on H.R. 3136 that
“Under Section 8(a)(1)(A), covered rules may not go into effect until the relevant
agency submits a copy of the rule and an accompanying report to both Houses of
Congress.”58
Shortly thereafter, the principal Senate and House sponsors of H.R. 3136
published a Joint Explanatory Statement in the Congressional Record providing a
detailed explanation of the provisions of the congressional review provision of the
CRA and its legislative history. Senator Nickles explained:
Mr. NICKLES. Mr. President, I will submit for the RECORD a statement which
serves to provide a detailed explanation and a legislative history for the
congressional review title of H.R. 3136, the Small Business Regulatory
Enforcement Fairness Act of 1996. H.R. 3136 was passed by the Senate on
March 28, 1996, and was signed by the President the next day . . . Because title
III of H.R. 3136 was the product of negotiation with the Senate and did not go
through the committee process, no other expression of its legislative history
exists other than the joint statement made by Senator REID and myself
immediately before passage of H.R. 3136 on March 28. I am submitting a joint
statement to be printed in the RECORD on behalf of myself, as the sponsor of
the S. 219, Senator REID, the prime co-sponsor of S. 219, and Senator
STEVENS, the chairman of the Committee on Governmental Affairs. This joint
statement is intended to provide guidance to the agencies, the courts, and other
interested parties when interpreting the act’s terms. The same statement has been
57
The disapproval of the ergonomics rule underlines a possible need for judicial review in
certain instances where enforcement is necessary and appropriate to support the statutory
scheme. That rule, which was broad and encompassing in its regulatory scope, raises the
question as to how far can the agency go before it reaches the point of substantial similarity
in its promulgation of a substitute. This issue is addressed in the next section.
58
142 Cong. Rec. H3005 (daily ed. March 28, 1996).
CRS-33
submitted today in the House by the chairmen of the committees of jurisdiction
over the congressional review legislation.59
The Joint Explanatory Statement is clear as to the scope and limitation of the
judicial review provision:
Limitation on judicial review of congressional or administrative actions
Section 805 provides that a court may not review any congressional or
administrative “determination, finding, action, or omission under this chapter”.
Thus, the major rule determinations made by the Administrator of the Office of
Information and Regulatory Affairs of the Office of Management and Budget are
not subject to judicial review. Nor may a court review whether Congress
complied with the congressional review procedures in this chapter. This latter
limitation on the scope of judicial review was drafted in recognition of the
constitutional right of each House of Congress to “determine the Rules of its
Proceedings”. U.S. Const. art. I, §5, cl. 2, which includes each house being the
final arbiter of compliance with such Rules.
The limitation on a court’s review of subsidiary determinations or
compliance with congressional procedures, however, does not bar a court from
giving effect to a resolution of disapproval that was enacted into law. A court
with proper jurisdiction may treat the congressional enactment of a joint
resolution of disapproval as it would treat the enactment of any other federal law.
Thus, a court with proper jurisdiction may review the resolution of disapproval
and the law that authorized the disapproved rule to determine whether the issuing
agency has the legal authority to issue a substantially different rule. The
language of subsection 801(g) is also instructive. Subsection 801(g) prohibits a
court or agency from inferring any intent of the Congress only when “Congress
does not enact a joint resolution of disapproval”, or by implication, when it has
not yet done so. In deciding cases or controversies properly before it, a court or
agency must give effect to the intent of the Congress when such a resolution is
enacted and becomes the law of the land. The limitation on judicial review in no
way prohibits a court from determining whether a rule is in effect. For example,
the authors expect that a court might recognize that a rule has no legal effect due
to the operation of subsections 801(a)(1)(A) or 801(a)(3).60
The Justice Department has suggested that such post-enactment legislative
history should not carry any weight, particularly in view of the unambiguous nature
of the preclusion language at issue.61 However, as discussed below, the courts appear
to have taken a contrary view in analogous interpretive situations.
The Joint Explanatory Statement is a contemporaneous explanation of the
congressional review provision by the legislative sponsors of the legislation which
is consonant with the text and structure of the legislation. Such statements by
legislative sponsors have been described by the Supreme Court as an “authoritative
guide to the statute’s construction.” North Haven Bd. of Education v. Bell, 456 U.S.
59
Legislative History, supra note 35, at 142 Cong. Rec. S 3683.
60
Id., at E 577 and S 3686.
61
See DOJ memorandum, supra n. 47, at 10 n.14.
CRS-34
512, 526-27 (1982)(citing a bill summary placed in the Congressional Record by the
bill’s sponsor after passage, and explanatory remarks made two years later by the
same sponsor); Pacific Gas & Electric Co. v. Energy Resources Conservation and
Development Commission, 461 U.S. 190, 211 n. 23 (1983)(relying on a 1965
explanation by “an important figure in the drafting of the 1957 [Atomic Energy
Act”]); Grove City College v. Bell, 465 U.S. 555, 567 (1984)(remarks of sponsors
deemed authoritative when they are consistent with the language of the legislation).
Finally it may be noted that analogous preclusion of judicial review provisions
in the original Paperwork Reduction Act of 1980, P.L. 96-511 and in the 1995
revision of the act, P.L. 104-13, have been uniformly construed by the courts to allow
enforcement of its public protection provision. Thus 44 U.S.C. 3504 (1994), which
authorized the Director of OMB to review and approve or disapprove information
collection requirements in agency rules, and to assign control numbers to such forms,
provided that “there shall be no judicial review of any kind of the Director’s decision
to approve or not to act upon a collection of information requirement contained in an
agency rule.” 44 U.S.C. 3504(h)(9). A similar provision appears in the 1995
revision of the Paperwork Reduction Act.62 The 1980 legislation also contained a
“public protection” provision which absolved a person from any penalty for not
complying with an information collection request if the form did not display an OMB
control number or failed to state that the request was not subject to the act.63 The
public protection provision, Section 3512, has been the subject of numerous court
actions, some finding it applicable and providing a complete defense to
noncompliance, others finding it inapplicable. But no court has ever raised a
question with respect to preclusion of judicial review.64
A reviewing court construing the language of the congressional review
provision, the structure of the legislation, and its legislative history, including postenactment statements, is therefore could well hold that a court is not precluded from
preventing an agency from enforcing a covered rule that was not reported to
Congress in compliance with Section 801(a)(1)(A).
7. The Uncertainty of the Breadth of the Prohibition Against an
Agency’s Promulgation of a “Substantially Similar” Rule after the
Original Rule Has Been Vetoed.
Enactment into law of a disapproval resolution has several important
consequences. First, a disapproved rule is deemed not to have had any effect at any
time. Thus, even a rule that has become effective for any period of time is
62
44 U.S.C. 3507(d)(6)(2000).
63
See 44 U.S.C. 3512 (1994).
64
Compare United States v. Smith, 866 F.2d 1092 (9th Cir. 1980)(failure of Forest Service
to file a plan of operations with OMB control number precluded conviction for failure to
file) and Cameron v. IRS, 593 F.Supp. 1540, aff’d 773 F.2d 126 (6th Cir. 1984)(failure of
IRS forms to have OMB control numbers did not violate section since it was a collection of
information during the investigation of a specific individual or entity which is exempt under
the provision).
CRS-35
retroactively negated.65 Second, a rule that does not take effect, or is not continued
because of the passage of a disapproval resolution, cannot be “reissued in the same
form” nor can a “new rule” that is “substantially the same” as the disapproved rule
be issued unless such action is specifically authorized by a law enacted subsequent
to the disapproval of the original rule.66 The full text of this provision states:
(2) A rule that does not take effect (or does not continue) under paragraph (1)
may not be reissued in substantially the same form, and a new rule that is
substantially the same as such a rule may not be issued, unless the reissued or
new rule is specifically authorized by a law enacted after the date of the joint
resolution disapproving the original rule.
Finally, if a rule that is subject to any statutory, regulatory or judicial deadline for its
promulgation is not allowed to take effect, or is terminated by the passage of a joint
resolution, any deadline is extended for one year after the date of enactment of the
disapproval resolution.67
Opponents of a disapproval resolution may argue that successful passage of a
resolution may disable an agency from ever promulgating rules in the “area” covered
by the resolution without future legislative reauthorization since a successful
disapproval resolution must necessarily bring down the entire rule. Or, at the very
least, it may be contended that any future attempt by the agency to promulgate new
rules with respect to the subject matter will be subject to judicial challenge by
regulated persons who may claim that either the new rules are substantially the same
as those disapproved or that the statute provides no meaningful standard to discern
whether a new rule is substantially the same and that the agency must await
congressional guidance in the form of a statute before it can engage in further
rulemaking in the area. The practical effect of these arguments, then, may be to
dissuade an agency from taking any action until Congress provides clear
authorization.
A review of the CRA’s statutory scheme and structure, the contemporaneous
congressional explanation of the legislative intent with respect to the provisions in
question, the lessons learned from the experience of the March 2001 disapproval of
the OSHA ergonomics rule, and the application of pertinent case law and statutory
construction principles suggests that (1) It is doubtful that Congress intended that all
disapproved rules would require statutory reauthorization before further agency
action could take place. For example, it appears that Congress anticipated further
rulemaking, without new authorization, where the statute in question established a
deadline for promulgating implementing rules in a particular area. In such instances,
the CRA extends the deadline for promulgation for one year from the date of
disapproval. (2) A close reading of the statute, together with its contemporaneous
congressional explication, arguably provides workable standards for agencies to
reform disapproved regulations that are likely to be taken into account by reviewing
courts. Those standards would require a reviewing court to assess both the nature of
65
5 U.S.C. 801(f).
66
5 U.S.C. 801(b)(2).
67
5 U.S.C. 803.
CRS-36
the rulemaking authority vested in the agency that promulgated the disapproved rule
and the specificity with which the Congress identified the objectionable portions of
a rule during the floor debates on disapproval. An important factor in a judicial
assessment may be the CRA’s recognition of the continued efficacy of statutory
deadlines for promulgating specified rules by extending such deadlines for one year
after disapproval. (3) The novelty of the issue, the uncertainty of the weight a court
may accord the post enactment congressional explanation, and the current judicial
inclination to give deference to the “plain meaning” of legislative language, make it
difficult to anticipate what a court is likely to hold.
Since Congress can apparently only disapprove a rule as a whole, rather than
pinpointing any particular portions, there may be no sound basis for the agency to act
without further legislative guidance where a rule deals exclusively with an integrated
subject matter. The statute gives no indication as to how an agency is to discern
what actions would be “substantially the same” and it would run the risk of a
successful court challenge if it guessed wrong. It might be further argued that even
if the agency promulgates new rules, which of course would be subject to CRA
scrutiny, and Congress did not act to disapprove the new rules, that would not
provide the necessary reauthorization since Section 801(g) of the act provides as a
rule of construction that in the event of the failure of Congress to disapprove a rule
“no court ... may infer any intent of Congress from any action or inaction of the
Congress with regard to such, related statute, or joint resolution of disapproval.”
It is fundamental that statutory language is the starting point in any case of
statutory construction. In recent years, the Supreme Court has shown a strong
disposition to hold Congress to the letter of the language it uses in its enactments.
In its ruling in Barnhart v. Sigmon Coal Co.68 the Court advised that the first step “is
to determine whether the language at issue has a plain and unambiguous meaning
with regard to the particular dispute in the case.”69 “The inquiry ceases ‘if the
statutory language is unambiguous and the statutory scheme is coherent and
consistent.’”70 In such cases, the Court has held, resort to “legislative history is
irrelevant to the interpretation of an unambiguous statute.”71 In Barnhardt the Court
warned, “parties should not seek to amend [a] statute by appeal to the Judicial
Branch.”72
The plain meaning rule, however, is not an unalterable, rigid rule of construction
and has been held inapplicable where it would “lead to an absurd result,”73 or “would
68
534 U.S. 438 (2002).
69
Id. at 450.
70
Id.
71
Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 808-09 n.3. Accord Connecticut
National Bank v. Germain, 503 U.S. 249, 253-54 (1992); United States v.Daas, 198 F.2d
1167, 1175 (9th Cir. 1999), cert. denied 531 U.S. 999 (2000).
72
534 U.S. at 462..
73
Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).
CRS-37
bring about an end completely at variance with the purpose of the statute.”74 “It is
‘a fundamental canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in the overall statutory scheme’
... Thus it is a more faithful construction of [a statute] to read it as a whole, rather
than as containing two unrelated parts. It is the classic judicial task of construing
related statutory provisions to make sense in combination.”75 In the instant situation,
it is arguably not likely that a court would hold that the “substantially the same”
language of Section 801(b)(2) is unambiguous, either on its face or in the context of
the statutory scheme. The direction of the provision is not a self-enforcing mandate;
it clearly requires a further determination whether rules have been reissued in
“substantially the same form” or whether a new rule is “substantially the same” as the
one disapproved. The ambiguity raised appears to be who makes those
determinations and on what basis.
The language of the provision, however, does not naturally or ineluctably lead
to the conclusion that no further remedial rulemaking can take place unless Congress
passes a new law. This reasoning is buttressed by Section 803(a) which contemplates
that agency rulemaking must take place after a disapproval action if the authorizing
legislation of the agency mandates that rules disapproved had to have been
promulgated by a date certain. That provision extends the deadline for promulgation
for one year “after the date of enactment of the joint resolution,” not one year after
Congress reauthorizes action in the area. A reasonable conclusion is that Congress
understood that after disapproval, an agency, if it was under a mandate to produce a
particular rule, had to try again. The question then is, how was it to perform this task.
The answer may lie in the legislative history of the act.
The Congressional Review Act was part of Title II of the Small Business
Regulatory Enforcement Fairness Act of 1996. That Title was a product of
negotiation between the Senate and House and did not go through the committee
process. Thus there is no detailed expression of its legislative history, apart from
floor statements by key House and Senate sponsors, before its passage by the
Congress on March 28, 1996 and its signing into law by the President on March 29.
Thereafter, the principal sponsors of the legislation in the Senate (Senators Nickles,
Reid and Stevens) and House (Representative Hyde) submitted identical joint
explanatory statements for publication in the Congressional Record “intended to
provide guidance to the agencies, the courts, and other interested parties when
interpreting the act’s terms.”76 Although it is a post-enactment explanation of the
legislation, it is likely to be accorded some weight as a contemporaneous, detailed,
in-depth statement of purpose and intent by the principal sponsors of the law.77
74
United Steelworkers v. Weber, 443 U.S. 193, 201 (1978).
75
United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) (holding, inter alia, that it is
appropriate for a court to look at the history and background against which Congress was
legislating).
76
77
Legislative History, supra, n. 35.
See e.g., North Haven Bd. of Education v. Bell, 456 U.S. 512, 530-31 (1982); Pacific Gas
& Electric Co. v. Energy Resources Conservation & Development Commission, 461 U.S.
(continued...)
CRS-38
The Joint Explanatory Statement directly addresses a number of issues that may
arise upon enactment of a disapproval resolution and attempts to provide guidance
for both Congress and agencies faced with repromulgation questions. At the outset,
the Statement notes that disapprovals may have differing impacts on promulgating
agencies depending on the nature and scope the rulemaking authority that was
utilized. For example, if an agency’s authorizing legislation did not mandate the
promulgation of the disapproved rule, and the legislation gives the agency broad
discretion, the authors deem it likely that it has the discretion whether or not to
promulgate a new rule. On the other hand, the Statement explains that “if an agency
is mandated to promulgate a particular rule and its discretion is narrowly
circumscribed, the enactment of a resolution of disapproval for that rule may work
to prohibit the reissuance of any rule.”78 Arguably, a congressional mandate to issue
regulations that is not narrowly focused would still be operative. But how would the
agency be guided in that circumstance? The Statement addresses that very question:
it is the obligation of Congress during the debate on the disapproval resolution “to
focus on the law that authorized the rule and make the congressional intent clear
regarding the agency’s options or lack thereof after the enactment of a joint resolution
of disapproval.”79 Thereafter, “the agency must give effect to the resolution of
disapproval.”80 The full statement on the issue is as follows:
Effect of enactment of a joint resolution of disapproval
Subsection 801(b)(1) provides that “A rule shall not take effect (or continue), if
the Congress enacts a joint resolution of disapproval, described under section
802, of the rule.” Subsection 801(b)(2) provides that such a disapproval rule
“may not be reissued in substantially the same form, and a new rule that is
substantially the same as such a rule may not be issued, unless the reissued or
new rule is specifically authorized by a law enacted after the date of the joint
resolution disapproving the original rule.” Subsection 801(b)(2) is necessary to
prevent circumvention of a resolution disapproval. Nevertheless, it may have a
different impact on the issuing agencies depending on the nature of the
underlying law that authorized the rule.
If the law that authorized the disapproved rule provides broad discretion to the
issuing agency regarding the substance of such rule, the agency may exercise its
broad discretion to issue a substantially different rule. If the law that authorized
the disapproved rule did not mandate the promulgation of any rule, the issuing
agency may exercise its discretion not to issue any new rule. Depending on the
law that authorized the rule, an issuing agency may have both options. But if an
agency is mandated to promulgate a particular rule and its discretion in issuing
the rule is narrowly circumscribed, the enactment of a resolution of disapproval
for that rule may work to prohibit the reissuance of any rule. The authors intend
the debate on any resolution of disapproval to focus on the law that authorized
the rule and make the congressional intent clear regarding the agency’s options
77
(...continued)
190, 220 n.23 (1983); Grove City College v. Bell , 465 U.S. 555, 567 (1984).
78
Legislative History supra note 35 at S 3686.
79
Id.
80
Id.
CRS-39
or lack thereof after enactment of a joint resolution of disapproval. It will be the
agency’s responsibility in the first instance when promulgating the rule to
determine the range of discretion afforded under the original law and whether the
law authorizes the agency to issue a substantially different rule. Then, the
agency must give effect to the resolution of disapproval.
The congressional experience with the disapproval of the OSHA ergonomics
standard provides a useful lesson. This rule became the first, and only, rule to be
disapproved thus far under the CRA. The principal sponsor of the resolution, Senator
Jeffords, at the outset of the debate addressed the issue whether disapproval would
disable OSHA from promulgating a new rule. Senator Jeffords referred to the abovediscussed Joint Statement and noted that OSHA “has enormously broad regulatory
authority,” citing pertinent sections of the OSH Act providing expansive rulemaking
authority. The Senator concluded that “I am convinced that the CRA will not act as
an impediment to OSHA should the agency decide to engage in ergonomics
rulemaking.”81 What Senator Jeffords apparently understood was that while the
agency had broad authority to promulgate rules, there was no congressional mandate
to issue an ergonomics rule in the underlying law. As a consequence it was possible
that no further rulemaking would occur, as implied by a letter to Senator Jeffords
from Secretary Chao which indicated that a new rulemaking was only one of many
options available to the Department should the rule be disapproved.82 OSHA made
it clear on April 5, 2002, that no rulemaking was in the offing. On April 17, 2002,
Senator Breaux and 26 co-sponsors, many of whom had voted in favor of the
disapproval resolution, introduced S. 2184, which would direct the Secretary of
Labor to promulgate a new ergonomics rule and specifies in detail what should be
included, what should not be included, and what evidence should be considered.
Section 1 (b)(4) of the bill deems the direction to issue the rule “a specific
authorization by Congress in accordance with Section 801 (b)(2)” of the CRA.
An interesting contrast with the ergonomics situation was the consideration
given by the key Senate sponsors of the Bipartisan Campaign Reform Act 2002
(BCRA),83 which required that the Federal Election Commission (FEC) promulgate
rules implementing the soft money limitations and prohibitions of Title I of the act
no later than 90 days after its date of enactment,84 whether to introduce a CRA
disapproval resolution with respect to the rules issued by the FEC on July 17, 2002.85
The Senate sponsors believed that the new rules, which became effective on
November 6, 2002, undermined the BCRA’s ban on the raising and spending of soft
money by federal candidates and officeholders and on national party use of soft
money. Since the FEC was mandated to promulgate rules to implement the BCRA
81
147 Cong. Rec. S 1832-33 (daily ed. March 6, 2001) (emphasis added).
82
147 Cong. Rec. at S 1832.
83
P.L. 107-55, 116 Stat. 81 (March 27, 2002).
84
Section 402 (c)(2).
85
Kenneth P. Doyle, Wertheimer, Bauer Debate Move to Void Soft Money Rule Before
Senate Democrats, Bureau of National Affairs, July 19, 2002. A disapproval resolution of
the FEC rules was introduced in the Senate, S.J.Res. 48, on October 8, 2002, but was never
acted upon by either House.
CRS-40
by a date certain, it could have been argued that, in contrast with the general
discretion OSHA has with respect to whether to issue any ergonomics standard, if
Congress disapproved the FEC’s soft money rule, the agency would be obligated to
undertake a new rulemaking (to be completed within a year after the disapproval
resolution was signed into law) that would reflect congressional objections to the
rule. At the same time, in accordance with the understanding of the Joint Statement,
it would have been arguably incumbent on Congress in its debates on any such
resolution to clearly identify those provisions of the rule that were objectionable as
well as those that are not.
Whether this line of argument would suffice to withstand a challenge in the
courts cannot be answered with any degree of certainty. Foreseeable obstacles may
be the novelty of the issue, the amount of weight, if any, that a court will accord the
post-enactment congressional explanation of the CRA, and the current inclination of
the courts to give deference to the plain meaning of statutory language and to eschew
legislative history. A new rule may be challenged on grounds of lack of authority as
a consequence of the disapproval resolution either because Congress failed to
articulate its objections to the rule, thereby providing no standards for the agency to
apply in its rulemaking, or that the new rules were “substantially the same” as the
old, disapproved rules and therefore invalid under the CRA.
The Joint Statement declares that it is the congressional intent to make clear and
specific identification of the options available to the agency, including identification
of objectionable provisions in the proposed rule during the floor debates. In this way
Congress could provide an agency clear and direct guidance as to what it expects in
the repromulgation process as well as a possible defense to a challenge based on the
“substantially the same” language of the CRA.
CRS-41
Recent Developments
In 2006 and 2007 suggestions for at least modest legislative remediation of the
perceived flaws in the CRA, if for no other reason than to maintain a credible
presence in the process of delegated administrative lawmaking, were presented in a
number of forums. These included hearings held by the House Judiciary
Subcommittee on Commercial and Administrative Law, a symposium held by the
Congressional Research Service (CRS Symposium), CRS and GAO reports,
published recommendations of the House Judiciary Subcommittee, and academic
writings.86 Participating witnesses and panelists concurred that the role of Congress
as the nation’s dominant policy maker was being threatened by widespread agency
evasion of notice and comment rulemaking requirements; the continued pressure for
legislative enhancement of the trend toward substantive judicial review of agency
rules; and the frequent calls for increased presidential control of agency rulemaking.
In particular, studies characterizing current rulemaking procedures as ossified
concluded that rule promulgation has become too time consuming, burdensome, and
unpredictable. The thrust of the academic critics, which assigns blame to each of the
branches for the increasingly ineffective implementation of statutory mandates, often
identifies that courts as the chief culprits because of intrusion in agency
decisionmaking through interpretations and applications of APA’s arbitrary and
capricious test. 87 Reviewing courts, it was maintained, will now find an agency to
have violated its duty to engage in reasoned decisionmaking if its statement of basis
and purpose is found to contain any gap in data or flaw in stated reasoning with
respect to any issue. The commentators cite statistical indications that reviewing
courts have been holding major rules invalid up to fifty percent of the time. 88
Preliminary indications of a study commissioned by the House Judiciary
Subcommittee, however, appears to suggest a far less successful challenge rate, but
the consequence of the perceived actions of the reviewing courts has been the
encouragement of agencies to utilize alternative vehicles to make and announce farreaching regulatory decisions.89 It was also argued that agencies can use actions such
as in adjudication of individual disputes or by so-called “non-rule” rules, where
purportedly non-binding statements of policy are made in guidances, operating
86
See Interim Report on “The Administrative Law, Process, and Procedure Project for the
21st Century.” House Subcommittee on Commercial and Administrative Law, Judiciary
Committee, 109th Cong. 2d Sess. (December 2006)(Committee Print No. 10); Hearing,
(Reauthorization of the Administrative Conference of the United States, ) before the House
Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, 109th
Cong., 2d Sess. (September 2007)(Reauthorization Hearing).
87
See, e.g. Regulatory Reform, supra note 91, at 83; Deossify Rulemaking, supra note 91,
at 65-66
88
See Peter H Schuck & Donald Elliot, To the Chevron Station: An Empirical Study of
Federal Administrative Law, 1990 Duke L. J. 984, 1022 (1990)(finding that during
1965,1974, 1984 and 1985, reviewing courts upheld only 43% of agency rules); Patricia M.
Wald, Judicial Review; Talking Points, 48Admin L. Rev. 350 (1996) (noting that 36 major
rules Reviewed by the District of Columbia Circuit during on year, 17 or 47% were
remanded in part for reconsideration.) .
89
Reauthorization Hearing, supra note 86 (Testimony of Professor Jody Freeman).
CRS-42
manuals, staff instructions, or like agency public communications. 90 However, the
proposed solutions of these scholars are essentially adjurations to the judiciary to
modify or abandon current doctrinal courses. For example, some scholars suggest
that courts abolish the duty to engage in reasoned decision making and instead
conduct a review of rules to determine whether they violate clear statutory or
constitutional constraints, or apply the Chevron defense more consistently and
strictly.91
It was also argued that only part of the problem facing Congress is fixing
identifiable structural and interpretive flaws. Part may also be attributable to a lack
of interest in confronting and dealing with complex and sensitive policy issues that
major rulemakings often present. During the CRS-sponsored symposium on
“Presidential, Congressional, and Judicial Control of Rulemaking”, one panelist,
Professor Jack Beermann, expressed his view that making it easier for Congress to
overturn an agency rule may come at a high political cost. He asked “Does Congress
want to be in the position where [it is perceived] that everything an agency does is
their responsibility since they’ve taken it on and Reviewed it under this mechanism?.
. .Do they want to have that perception?” He concluded that “I think that this may just
increase the blaming opportunities for Congress.”
Some of the commentators saw a failure of the Congress to understand and
appreciate the nature of the stakes involved and the dangers inherent in failing to act
decisively to resolve them. Professor Cynthia Farina argued that it was the
legitimacy of the administrative lawmaking process that is at the heart of the
deossification, nondelegation and new presidentialism debates. Her insight as to the
necessity of viewing the legitimacy and operational effectiveness of the regulatory
process as a “collaborative enterprise” involving the appropriate official actors and
institutional practices may be seen by some as an informing guidepost for action.92
The following list of legislative options propounded by the House Judiciary
Subcommittee in its “Interim Report”93 appears based on propositions and
assumptions extracted from the hearings held by the Committee on the CRA, the
CRS symposium, CRS and GAO reports, and academic commentary:
90
See, e.g. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals,
and the Like - Should Federal Agencies Use Them to Bind the Public? 41 Duke L.J. 131
(1992); Robert A. Anthony, “Well You Want the Permit, Don’t You?”:Agency Efforts to
Make Non-legislative Documents Bind the Public, 44 Adm. L. Rev. 31 (1992); Michael
Aismow, California Undrground Regulations, 44 Adm. L. Rev 43 (1992).
91
See, e.g. Paul R. Verkuil, Comment, Rulemaking Ossification-A Modest Proposal, 47
Adm. L. Rev. 453(1995); Richard J. Pierce, Seven Ways to Deossify Agency Rulemaking,
47 Adm. L. Rev. 59, 71-93(1995). A more detailed discussion of the issues by court rulings
on agency decisionmaking appears in this report’s section of Judicial Review of Agency
Rulemaking.
92
Cynthia R. Farina, Undoing the New Deal Through the New Presidentialism, 22 Harv. J.
Of L. & Pub. Policy, 227, 232, 235, 238 (1998).
93
Supra note 86.
CRS-43
1. Amend the CRA to provide that all covered rules must be submitted to
Congress and cannot become effective until Congress passes a joint resolution of
approval. This would vest significant control (as well as accountability) over agency
rulemaking in Congress. It would require expedited consideration procedures be
established in both Houses as well as a special process to assure speedy approval of
non-controversial proposed rules. Testimony before the Committee indicated that
a “deeming” process could be established under the rulemaking authority of each
House which would allow summary approval of all rules for which there has been no
indication of a need for full consideration by the House, i.e., the filing of a notice of
intent by a specific number of Members with a prescribed time period after
congressional receipt of the proposed rule.94 Although the internal decisional
processes (expedited consideration and the deeming process) could be established by
House rule, the requirement of congressional approval of all rules would require the
passage of a new law. Presidential approval of such legislation is likely to be highly
problematic.
2. By rule of each House establish a joint committee to act as a clearinghouse
and screening mechanism for all covered rules. Such a committee would be advisory
only, reporting to jurisdictional committees for both Houses its findings with respect
to reported rules and recommendations, when appropriate, for action on joint
resolutions of disapproval. The House of Representatives would establish by rule an
expedited consideration procedure complimentary to the current Senate procedure.
The joint committee would be authorized to request reports on submitted rules from
GAO assessing such matters as the cost and benefits, cost effectiveness, and legal
authority of the subject rule. None of the foregoing would require the passage of
legislation requiring presidential approval. 95 The witnesses at the Committee’s
hearings and panelists at the CRS symposium concluded that the establishment of a
joint congressional committee to screen rules and recommend action to jurisdictional
committees in both Houses could provide the coordination and information necessary
to inform both bodies sufficiently and in a timely manner to allow them to take
actions under current law. The balanced nature of such a joint committee and its lack
of substantive authority might provide a way to allay political concerns regarding
“turf” intrusions.
3. Amend the CRA to direct that reports to Congress and GAO of covered rules
are to be submitted electronically. The House Parliamentarian and other witnesses
and symposium panelists indicated that the paperwork burden on the
Parliamentarian’s office as well as the uncertainties of proper receipt by Congress
and timely redirection to the appropriate committees, and other problems with paper
submissions, could be relieved by electronic submissions.
94
A more detailed description of such process and a discussion of it’s constructional basis
appears in “Whatever Happened to Congress Reviews of Agency Rulemaking? A Brief
Overview, Assessment , and Proposal for Reform,” 51 Admin.L. Rev. 1051, 1083-1090
(1999).
95
However, an appropriation to cover the costs of GAO’s new assessment tasks is likely
necessary.
CRS-44
4. Amend the CRA to require the reporting of only “major rules.” This option
was suggested by witnesses and panelists as a means limiting the screening burden
on committees and on the assumption that only “major rules” are likely to raise
significant congressional review issues. At present, the CRA allows only the
Administrator of OIRA to designate which rules are to be deemed “major.”
However, even a rule that may be conceded to be “minor,” in the sense of it having
minimal economic impact, may well have a significance to congressional
constituencies. The difficulty would be designating a determiner that is politically
acceptable and constitutionally appropriate. The Supreme Court’s ruling in INS v.
Chadha,96 the legislative veto case, precludes authorizing legislative committees or
officers from selecting particular rules and ordering agencies to report them for
review. In view of the practical and legal problems, it may well be that the current
requirement of blanket rule reporting, perhaps supplemented by a screening body,
such as the suggested joint committee, would be more acceptable.
5. Amend the CRA to make it clear that failing to report a covered rule renders
the rule unenforceable and is subject to judicial review. Proponents of the CRA
consider this lack of an enforceable reporting requirement to undermine the purpose
of the CRA.
6. Amend the CRA to make it clear that an up-or-down vote is on the entire
reported rule. The credible threat of congressional review would presumably force
agencies to carefully tailor their rules with more attention to congressional
expectations. Expedition in the review process, however, is vital so as not to
undermine agency enforcement and the certainty needed by the regulated community.
The possibility of conflicting disapproval resolutions from each House, and long,
perhaps unsuccessful conference committees deliberations, may undermine the
intended purpose of the CRA. The following option, however, may ameliorate the
concern over the up-or-down vote on the entire rule.
7. Amend the CRA to provide that if a rule is disapproved, an agency is
prohibited from repromulgating only those provisions of the rule that the review
process and floor debates on disapproval clearly identify as objectionable. Such a
qualification to the CRA review process appears to comport with the legislative
intent of the sponsors of the CRA. If the option of creation of a joint committee were
adopted, it could be mandated to identify the discrete problems of the rule that were
objectionable. That would obviate the necessity of legislative amendment to reestablish agency authority in an area after passage of a disapproval resolution.
Conclusion
This report identifies structural and interpretive issues affecting use of the CRA.
While there have been some instances of the law apparently influencing the
implementation of certain rules, the limited utilization of the formal disapproval
process in the ten years since enactment has arguably reduced the threat of possible
congressional scrutiny and disapproval as a factor in agency rule development. The
one instance in which an agency rule was successfully negated is likely a singular
96
462 US. 919 (1983).
CRS-45
event not soon to be repeated. Presently, the Congress and the White House are in the
hands of opposing political partys, the rules of the previous Administration are no
longer subject to the CRA, and the current Administration appears to be establishing
firm control of the agency rulemaking process through its administration of Executive
Order 12,866.97 One commentator opined that if the perception of a rulemaking
agency is that the possibility of congressional review is remote “it will discount the
likelihood of congressional intervention because of the uncertainty about where
Congress might stand on that rule when it is promulgated years down the road,” an
attitude that is reinforced “so long as [the agency] believes that the president will
support its rule.”98 Some observers say that a significant number of covered rules is
not being submitted for review at all. Also, a potentially effective support mechanism,
the in-depth, individualized scrutiny of selected agency cost-benefit and risk
assessment analyses by GAO authorized under the Truth in Regulating Act of 2000,
was never implemented for lack of appropriated funds.
Selected Source Readings
Cohen, Daniel and Strauss, Peter L. “Congressional Review of Agency Regulations.”
Administrative Law Review 49 (Winter 1996): 95-110.
Parks, Julia A. “Lessons in Politics: Initial Use of the Congressional Review Act.”
Administrative Law Review 55 (Fall 2003): 187-210.
Pfohl, Peter A. “Congressional Review of Agency Rulemaking: The 104th Congress
and the Salvage Timber Directive.” 14 Journal of Law and Politics (Winter
1998): 1-31.
Rosenberg, Morton. “Whatever Happened to Congressional Review of Agency
Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform.” 51
Administrative Law Review (Fall 1999): 1051-1092.
U.S. Congress. “Interim Report on the Administrative Law, Process, and Procedure
Project for the 21st Century.” House Judiciary Committee, Subcommittee on
Commercial and Administrative Law, 109th Cong., 2d Sess. (December
2006)(Committee Print No. 10).
97
See, e.g., Changes in the OMB Regulatory Review Process by E.O. 13422, CRS Report
RL33862 by Curtis W. Copeland, August 17, 2007; Rebecca Adams, Graham Leaves OIRA
With a Full Job Jar, CQ Week, January 23, 2006; U.S. GAO. Rulemaking: OMB’s Role in
Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews, GAO-03-929
(September 2003; Stephen Power and Jacob M. Schlesinger, Redrawing the Lines: Bush’s
Rule Czar Brings Long Knife to New Regulations, Wall St. Journal, 6/12/02 at Al; Rebecca
Adams, Regulating the Rulemakers: John Graham at OIRA, CQ Weekly, 2/23/02 at 520526.
98
Seidenfeld, supra note 31, at 1090.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.