Congressional Review of Agency Rulemaking

• Author: William Funk - Jeffrey S. Lubbers
• Pages: 195-210

195

CONGRESSIONAL REVIEW OF AGENCY R ULEMAKING

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Congressional

Review of

Agency

Rulemaking

195

Citations:

5. U.S.C. §§ 801-808 (2012); 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 execu-

tive and legislative branch agencies have responsibilities: The Office of In-

formation and Regulatory Affairs, in the Office of Management and Budget,

725 17th Street, NW, Washington, DC 20503, 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 Ac-

countability 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 congressional re-

view 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 disapproval of the rule.

It was effective upon enactment (March 29, 1996).

CONGRESSIONAL REVIEW OF AGENCY R ULEMAKING

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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 Reform 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 Congressional

Review Act follows the definition found in the Administrative Procedure

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

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

of general policy, interpretive rules, and rules relating to government grants,

benefits, contracts, etc. A “major rule” is defined as a rule that has resulted

in, or is likely to result in, an annual effect on the economy of one million

dollars or more, a major increase in cost of prices for consumers or industry,

or significant adverse effects on competition, employment, investment, pro-

ductivity, 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 pub-

lished in the Federal Register or from the date the agency’s report on the rule

is submitted, whichever is later (unless a resolution of disapproval is defeated

during that time). Section 801(3). However all rules for which the agency

has invoked the “good cause” exemption in the APA from notice and com-

ment 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 prescribe future rates, wages, prices, etc.); (2) rules relating to agency

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

or practice that do not substantially affect the rights or obligations of non-

agency parties. Section 804(3).1 Also excluded are rules promulgated by the

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’”).