The Congressional Review Act: Agency Requirements

This is the second in a series about the Congressional Review Act (CRA), codified at 5 U.S.C. §§ 801-808. The first post summarized the CRA and discussed the special definitions used in the Act. This post summarizes the requirements that the CRA imposes on federal agencies and their rules. As explained in the first post, the CRA distinguishes between rules generally and rules that qualify as major rules. That distinction becomes important in understanding what the CRA requires of agencies.

Requirements for All Rules

The Congressional Review Act requires that federal agencies submit two reports regarding any rules they promulgate, one that goes to each house of Congress and the Comptroller General, and one that goes to the Comptroller General alone, but must be made available to each house of Congress.

1. Report to Congress & the Comptroller General. Section 801(a)(1)(A) requires that agencies submit a report to each house of Congress and the Comptroller General for every rule that they promulgate. The report must contain a copy of the rule, a summary of the rule, a statement whether the rule is a major rule, and the rule's proposed effective date. Agencies are required to submit the report "[b]efore a rule can take effect." These reports are not generally made available to the public, but the Congressional Record does document their submission to Congress as executive communications.

2. Additional report for the Comptroller General. Additionally, section 801(a)(1)(B) requires agencies to submit a separate report to the Comptroller General and make it available to each house of Congress. This second report is due on the same day as the first, and must include any cost-benefit analysis of the rule and information about the agency's compliance with legal requirements for regulatory flexibility analyses, certain requirements under the Unfunded Mandates Reform Act of 1995 (PDF), and any other relevant information or requirements under other laws or executive orders.

The Government Accountability Office (GAO), of which the Comptroller General is the head, provides a form (PDF) for agencies to use when submitting their reports to Congress or the Comptroller General. The GAO also maintains a database of rules for which it has received a report, which can be found here.

Notably, the CRA doesn't define any penalties for failing to submit a report required by the Act. An independent review conducted by Curtis W. Copeland in 2014 (PDF) found that nearly 30% of the rules published in the Federal Register during 2012 and 2013 were never submitted to the Comptroller General, including six major rules. You might think that anyone adversely affected by a rule that was never submitted to Congress and the Comptroller General could sue to prevent its implementation, relying on section 801(a)(1)(A)'s language that requires submission "[b]efore a rule can take effect." But, according to the Congressional Research Service (PDF), most federal courts to have addressed that issue have concluded that they cannot review an agency's failure to submit a rule to Congress or the Comptroller General under the CRA, because section 805 states that "[n]o . . . omission under this chapter shall be subject to judicial review." In a future post on this subject, I'll discuss some options that Congress may have in dealing with missing rules.

Additional Requirements for Major Rules

For rules that qualify as major rules, the Congressional Review Act requires the Comptroller General to submit a report to Congress and delays the effective date of the rule to give Congress a chance to review it before it takes effect.

1. Comptroller General Report. For each major rule, section 801(a)(2) requires the Comptroller General to submit a report to the appropriate House and Senate committees within 15 calendar days after the submission or publication date of the rule. In the report, the Comptroller General must assess the agency's compliance with all the legal requirements covered by the second report discussed above. Agencies are required to cooperate with the Comptroller General by providing relevant information. You can see a recent major-rule report submitted by the Comptroller General in this PDF.

2. Delayed effectiveness. The Congressional Review Act delays the effectiveness of major rules in section 801(a)(3), though only for major rules "relating to a report submitted" to Congress and the Comptroller General. Under section 801(a)(3), major rules generally take effect 60 days after the submission or publication date or the date the rule would have otherwise taken effect, whichever is later. In other words, if an agency's proposed effective date is within the 60-day period beginning with the submission or publication date, then it will become effective at the end of that period. If the proposed effective date is sometime after that 60-day period ends, then it will become effective on the proposed effective date.

It is possible for a major rule to take effect before the end of the 60-day period mentioned above. This can happen for one of two reasons. First, if either house of Congress rejects a joint resolution of disapproval under the CRA, then the rule will take effect on its proposed effective date, even if that date is within 60 days of the submission or publication date. Second, if the president determines by executive order that a rule should take effect during the 60-day period after the submission or publication date because it is necessary because of an emergency, necessary for the enforcement of criminal laws, necessary for national security, or issued pursuant to a statute implementing an international trade agreement, then the rule can become effective during that period. This doesn't allow the rule to continue in effect if Congress overturns it through the CRA; it merely allows a major rule subject to the CRA's delay provision to take effect despite that provision.

A major rule may be delayed beyond the general 60-day period if Congress passes a joint resolution of disapproval, but the president vetoes it. In that event, the rule will take effect on the earlier of the date-

(A) on which either House of Congress votes and fails to override the veto of the President; or (B) occurring 30 session days after the date on which the Congress received the veto and objections of the President[.]

As noted above, section 801(a)(3)'s delay only affects major rules "relating to a report submitted" to Congress and the Comptroller General. If a report on a major rule is never submitted, then the effective date of that rule won't be delayed by section 801(a)(3). This provision is clearly intended to work together with the requirement of section 801(a)(1)(A) that a report be submitted "[b]efore a rule can take effect." Thus, if a report on a major rule is never submitted, the rule can never take effect; once a report is submitted, the major rule is delayed. But, again, the statutory scheme falls apart because of the lack of penalties or an enforcement mechanism in the CRA. In practice, agencies that want a major rule to become effective without enduring the CRA's 60-day delay have an incentive not to submit a report about the rule at all.