The Congressional Review Act: Summary and Definitions
The Congressional Review Act (CRA) is a federal statute that enables Congress to overturn rules promulgated by federal agencies using an expedited procedure in the Senate. The CRA does this by requiring agencies to submit reports about each rule to Congress, which triggers a period in which the expedited procedures apply. If Congress passes, and the president signs, a joint resolution of disapproval, then the rule cannot take effect, or if already in effect, then the rule must be treated as if it had never become effective. Additionally, agencies are prohibited from ever enacting a rule that is "substantially the same" as a rule overturned under the CRA, unless Congress passes a subsequent law permitting them to do so.
Enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act (PDF), the CRA is now codified at 5 U.S.C. §§ 801-808. Prior to 2017, the Act was only successfully used once, to overturn an ergonomics rule (PDF) promulgated by the Department of Labor in late 2000. But since the inauguration of President Donald Trump in January 2017, it has been used to overturn three rules enacted late in the administration of President Barack Obama, and congressional Republicans hope to overturn still more.
Despite how simple the concept of congressional review may seem, the CRA is actually quite complex. Much of that complexity arises from the different time periods referred to in the Act, the different events that trigger those time periods, and the different ways that the Act calculates time. Ambiguous provisions and an occasionally loose structure also contribute to the statute's complexity. In this and subsequent posts, I will untangle the intricacies of the Congressional Review Act and present its requirements and procedures in a straightforward fashion, pointing out flaws in the statute when appropriate. This post describes the special definitions used in the CRA.
Congressional Review Act Definitions
As with most laws, the Congressional Review Act gives some of the words and phrases that it uses a special definition. Most of these are listed in section 804. That section defines three terms used in the CRA, "Federal agency," "rule," and "major rule." In addition, section 802 includes a definition of the phrase "submission or publication date."
Federal agency. The CRA defines a "Federal agency" as "any agency as that term is defined in" the Administrative Procedure Act (APA). The APA, in turn, defines "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," but then excludes from that definition Congress; the courts; the governments of U.S. territories, possessions, and the District of Columbia; certain military authorities; and a handful of other types of federal authorities.
Rule. "Rule" is also defined in the CRA by reference to the APA, but with some modifications. The APA defines "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 definition of "rule" incorporates the APA's, but excludes the following:
(A) any rule of particular applicability . . . ;
(B) any rule relating to agency management or personnel; [and]
(C) any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.
Though technically rules under the CRA, section 807 nonetheless exempts from the CRA's requirements any rules "that concern monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or the Federal Open Market Committee."
Major rule. A "major rule" under the CRA means any rule that the Office of Information and Regulatory Affairs (OIRA) determines has or will likely result in:
(A) an annual effect on the economy of $100,000,000 or more;
(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
However, the CRA specifically excludes rules "promulgated under the Telecommunications Act of 1996 and the amendments made by that Act" (PDF) from the definition of "major rule," though not from the definition of "rule."
The CRA's definition of "major rule" has caused some problems in implementing the Act, as pointed out by a Congressional Research Service FAQ (PDF). Specifically, the definition of "major rule" requires a determination by OIRA as to a rule's past or potential effects. However, the CRA never requires agencies to submit a report about their rules to OIRA. This omission is mitigated, though only partially, by Executive Order 12866 (PDF), which was signed by President Bill Clinton in 1993. That order requires that agencies (but not independent regulatory agencies) submit reports to OIRA for "regulatory actions" that are "significant regulatory actions." "Regulatory actions" aren't rules, but are "any substantive action by an agency . . . that promulgates or is expected to lead to the promulgation of a final rule." A regulatory action is a "significant regulatory action" under the order if it will likely result in a rule that will have "an annual effect on the economy of $100 million or more," which parallels the first criterion for a "major rule" under the CRA. As a consequence, major rules (the ones that aren't promulgated by independent agencies, at least) will often be submitted to OIRA under President Clinton's executive order, enabling OIRA to make the major-rule determination required under the CRA.
Submission or publication date. Finally, section 802(b)(2) defines the phrase "submission or publication date." The phrase means
the later of the date on which-
(A) the Congress receives the report submitted under section 801(a)(1); or
(B) the rule is published in the Federal Register, if so published.
Technically, this definition of "submission or publication date" is only "for purposes of" section 802, but it is incorporated in section 801 in one part, and the date determined under the definition is employed in another part of section 801, so I will use the term "submission or publication date" when discussing both of those parts of section 801.
Of course, these definitions are of little use outside of the context of the CRA's requirements, and it is to that topic that my next post will be addressed.