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The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress

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The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress Updated March 6, 2019 Congressional Research Service https://crsreports.congress.gov R45248 The Congressional Review Act: Which “Rules” Must Be Submitted to Congress Summary The Congressional Review Act (CRA) allows Congress to review certain types of federal agency actions that fall under the statutory category of “rules.” The CRA requires that agencies report their rules to Congress and provides special procedures under which Congress can consider legislation to overturn those rules. A joint resolution of disapproval will become effective once both houses of Congress pass a joint resolution and it is signed by the President, or if Congress overrides the President’s veto. The CRA generally adopts a broad definition of the word “rule” from the Administrative Procedure Act (APA), defining a rule as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” The CRA, however, provides three exceptions to this broad definition: any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowances therefor, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing; any rule relating to agency management or personnel; or any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. The class of rules the CRA covers is broader than the category of rules that are subject to the APA’s notice-and-comment requirements. As such, some agency actions, such as guidance documents, that are not subject to notice-and-comment rulemaking procedures may still be considered rules under the CRA and thus could be overturned using the CRA’s procedures. The effect of Congress disapproving a rule that is not subject to notice-and-comment rulemaking may be subject to debate, given that such rules are generally viewed to lack any legal effect in the first place. Nonetheless, the CRA does encompass some such rules, as highlighted by the recent enactment of a CRA resolution overturning a bulletin from the Consumer Financial Protection Bureau that was not subject to the notice-and-comment procedures. Even if an agency action falls under the CRA’s definition of “rule,” however, the expedited procedures for considering legislation to overturn the rule only become available when the agency submits the rule to Congress. In many cases in which agencies take actions that fall under the scope of a “rule” but have not gone through notice-and-comment rulemaking procedures, agencies fail to submit those rules. Thus, questions have arisen as to how Members can avail themselves of the CRA’s special fast-track procedures if the agency has not submitted the action to Congress. To protect its prerogative to review agency rules under the CRA, Congress and the Government Accountability Office (GAO) have developed an ad hoc process in which Members can request that GAO provide a formal legal opinion on whether a particular agency action qualifies as a rule under the CRA. If GAO concludes that the action in question falls within the CRA’s definition of “rule,” Congress has treated the publication of the GAO opinion in the Congressional Record as constructive submission of the rule. In other words, an affirmative opinion from GAO can allow Congress to use the CRA procedures to consider legislation overturning an agency action despite the agency not submitting that action to Congress. Congressional Research Service The Congressional Review Act: Which “Rules” Must Be Submitted to Congress Contents Overview of the CRA ...................................................................................................................... 2 Types of Agency Actions Covered by the CRA .............................................................................. 3 Determining Whether an Agency Action Is an APA Rule ......................................................... 5 Differentiating “Rules,” “Orders,” and “Investigative Acts” under the APA...................... 6 “Rules” under the APA ....................................................................................................... 6 Notice-and-Comment Rulemaking and Guidance Documents ........................................... 9 CRA Incorporation of APA Definition of “Rule” .............................................................. 11 CRA Exceptions ...................................................................................................................... 13 Rules of Particular Applicability ....................................................................................... 13 Rules Relating to Agency Management or Personnel ....................................................... 14 Rules of Agency Organization, Procedure, or Practice ..................................................... 16 CRA Requirement for Submission of Rules .................................................................................. 17 Agency Compliance with Submission Requirement ............................................................... 18 Submission of Notice-and-Comment Rules vs. Other Types of Documents .................... 20 GAO’s Role in Determining Whether an Agency Action is Covered by the CRA ....................... 21 Origin of GAO’s Role ............................................................................................................. 22 Congressional Response to GAO Opinions Since 1996 ................................................... 24 Consequences of GAO Opinions ............................................................................................ 24 Summary of GAO Opinions .................................................................................................... 27 Figures Figure 1. Determining Whether an Agency Action Is a “Rule” Under the Congressional Review Act: Two-Part Inquiry...................................................................................................... 4 Tables Table 1. Government Accountability Office Opinions on Whether Certain Agency “Rules” Are Covered by the Congressional Review Act ........................................................... 41 Appendixes Appendix A. Submission Form for Rules Under the CRA ............................................................ 39 Appendix B. Summary of GAO Opinions .................................................................................... 41 Contacts Author Information ........................................................................................................................ 44 Congressional Research Service The Congressional Review Act: Which “Rules” Must Be Submitted to Congress he Congressional Review Act (CRA) allows Congress to review certain types of federal agency actions that fall under the statutory category of “rules.”1 Enacted in 1996 as part of T the Small Business Regulatory Enforcement Fairness Act, the CRA requires agencies to report the issuance of “rules” to Congress and provides Congress with special procedures under which to consider legislation to overturn those rules.2 A joint resolution of disapproval will become effective once both houses of Congress pass a joint resolution and it is signed by the President, or if Congress overrides the President’s veto.3 For an agency’s action to be eligible for review under the CRA, it must qualify as a “rule” as defined by the statute.4 The class of rules covered by the CRA is broader than the category of rules that are subject to the Administrative Procedure Act’s (APA’s) notice-and-comment requirements.5 As such, some agency actions, such as guidance documents, that are not subject to notice-and-comment rulemaking procedures may still be considered rules under the CRA and thus could be overturned using the CRA’s procedures. The 115th Congress used the CRA to pass, for the first time, a resolution of disapproval overturning an agency guidance document that had not been promulgated through notice-and- comment procedures.6 The resolution was signed into law by the President on May 21, 2018.7 In all of the previous instances in which the CRA was used to overturn agency actions, the disapproved actions were regulations that had been adopted through APA rulemaking processes.8 Congress’s use of the CRA in this instance raised questions about the scope of the CRA and Congress’s ability to use the CRA to overturn agency actions that were not promulgated through APA notice-and-comment procedures. Under the CRA, the expedited procedures for considering legislation to overturn rules become available only when agencies submit their rules to Congress.9 In many cases in which agencies take actions that meet the legal definition of a “rule” but have not gone through notice-and- comment rulemaking procedures, however, agencies fail to submit those rules.10 Thus, questions have arisen as to how Members can use the CRA’s procedures to overturn agency actions when an agency does not submit the action to Congress. This report first describes what types of agency actions can be overturned using the CRA by providing a close examination and discussion of the statutory definition of “rule.” The report then 1 5 U.S.C.
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