3. Congressional Review of Agency Rulemaking

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199

CONGRESSIONAL REVIEW OF AGENCY R ULEMAKING

3

Congressional

Review of

Agency

Rulemaking

199

Citations:

5. U.S.C. §§801-808 (2000); enacted March 29, 1996 by Pub. L. No.

104-121, §251, 110 Stat. 847, 868-74.

Lead Agencies:

No one single agency is charged with overseeing the Act. Various ex-

ecutive and legislative branch agencies have responsibilities: The Office of

Information and Regulatory Affairs (OIRA) in the Office of Management

and Budget, Eisenhower Executive Office Building, 1650 Pennsylvania

Avenue NW, Washington, DC 20502, (202) 395-4852, determines which

rules are “major” rules.

Agencies must submit rules to both Houses of Congress: House Clerk,

Room H-154, the Capitol, Washington, DC 20515-6601, (202) 225-7000

and the Secretary of the Senate, Room S-312, the Capitol, Washington, DC

20510-7100, (202) 224-3622; and to the General Counsel, Government

Accountability Office, Room 7167, 441 G Street, NW, Washington, DC

20548, (202) 512-5400.

Overview:

The Small Business Regulatory Enforcement Fairness Act of 1996, en-

acted as Title II of the Contract with America Advancement Act (Pub. L.

No. 104-121), included a Subtitle E that created a process for Congres-

sional review of agency rulemaking. It added a new chapter 8 to title 5 of

the U.S.C. In an effort to increase accountability for costly rules, this Act

mandates that agencies must submit a copy to Congress which then has the

opportunity to use expedited procedures to pass a joint resolution of disap-

proval of the rule. It was effective upon enactment (March 29, 1996).

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200

Summary of procedure. The principal provisions of section 801 may

be summarized briefly. Subsection (a)(1)(A) defines the basic procedure

that the agency must follow. Before a rule can take effect, the agency must

submit a report to each House of Congress and to the Comptroller General

(GAO) containing a copy of the rule and indicating whether it is a major

rule or not. A copy of any cost-benefit analysis of the rule, and the agency

statements made under any other acts (such as the Unfunded Mandates Re-

form Act, the Paperwork Reduction Act, or the Regulatory Flexibility Act)

must also be submitted. For major rules, the Comptroller has 15 days after

submission to provide a report to the committees of jurisdiction in each

House of Congress.

Major and non-major rules. The term “rule” as used in the Congres-

sional Review Act follows the definition found in the Administrative Pro-

cedure Act. Section 804(1). The term “rule,” therefore, includes rules that

may be exempt from the APA’s notice-and comment procedures such as,

statements of general policy, interpretive rules, and rules relating to gov-

ernment grants, benefits, contracts, etc. A “major rule” is defined as a rule

that has resulted in, or is likely to result in, an annual effect on the economy

of one million dollars or more, a major increase in cost of prices for con-

sumers or industry, or significant adverse effects on competition, employ-

ment, investment, productivity, or competition of prices in foreign markets.

Section 804(2). The effective date of non-major rules is not delayed by the

Act, but the effective date of major rules is delayed at least 60 days from

the date the rule is published in the Federal Register or from the date the

agency’s report on the rule is submitted (whichever is later) (unless a reso-

lution of disapproval is defeated during that time). Section 801(3). How-

ever all rules for which the agency has invoked the “good cause” exemption

in the APA from notice and comment procedures are effective immediately,

as are rules concerning hunting, fishing and camping. Section 808.

Exemptions. The following types of rules are exempted from congres-

sional review: (1) rules of particular applicability (including rules that ap-

prove or prescribes for future rates, wages, prices, etc.); (2) rules relating

to agency management or personnel; and (3) rules of agency organization,

procedure, or practice that do not substantially affect the rights or obliga-

tions of non-agency parties. Section 804(3).1 Also excluded are rules pro-

1See, e.g., U.S. Gen. Accounting Office, Letter B-292045 to Rep. Lane Evans

(May 19, 2003) (concluding that a DVA memorandum terminating a discretionary

loan program was not a covered “rule” under the CRA because it was 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’”).