Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After Ten Years

Publication Date: March 2006

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

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Abstract:

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. In its current form, however, some 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.

Among 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. 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. Some might argue that these potential impediments and uncertainties have contributed to the fact that of a total of 37 joint resolutions of disapproval that have been introduced to date since April 1996, only one has succeeded in passing and that one may have been sui generis because of the unique circumstances accompanying its passage. During that period 41,218 major and nonmajor rules have been reported and become effective.

This report will provide a brief explanation of how the structure of review scheme describes the criticisms of a some observers concerning the way it has been utilized.

This report will be updated as warranted.