Order Code RL30116
CRS Report for Congress
Received through the CRS Web
Congressional Review of Agency Rulemaking: A
Brief Overview and Assessment After Five Years
Updated March 6, 2001
Morton Rosenberg
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress

---

Congressional Review of Agency Rulemaking: A Brief
Overview and Assessment After Five Years
Summary
On March 29, 1996, the President signed into law the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBRFA), 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 virtually all federal agency rules (hereinafter
Congressional Review Act or CRA). In its current form, however, the efficacy of the
review scheme as a vehicle to control agency lawmaking through the exercise of
responsible, effective and expeditious legislative oversight may appear to some
observers to be problematic. On the other hand, several rules have been affected by
the presence of the review mechanism, suggesting that the review scheme has had
some influence. Among potential impediments to the law’s full 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, 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 part or 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, remain to be
resolved. Some might argue that these potential impediments and uncertainties have
contributed to the fact that a total of seven joint resolutions of disapproval have been
introduced since April 1996, none of which was passed by either House. During that
period over 21,500 major and non-major rules have been reported and become
effective. However, on March 1, 2001, a joint resolution to disapprove the Clinton
Administration’s controversial ergonomics rule was introduced in the Senate and may
provide a definitive test of the review mechanism’s efficacy and utility.
This report will provide a brief explanation of how the review scheme was
expected to operate and describe how it has in fact been utilized. The possible reasons
for the limited use of the review scheme thus far are assessed and congressional
remedial proposals and other options are discussed.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Review of Agency Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Utilization of the Review Mechanism since 1996 . . . . . . . . . . . . . . . . . . . . 5
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Lack of a Screening Mechanism to Pinpoint Rules That Need
Congressional Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Lack of an Expedited House Procedure . . . . . . . . . . . . . . . . . . . . . 9
3. The Deterrent Effect of the Ultimate Need for a Supermajority to Veto
a Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. The Reluctance to Disapprove an Omnibus Rule Where Only One Part
of the Rule Raises Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5. The Uncertainty of Which Rules Are Covered By SBRFA . . . . . . 12
6. The Uncertainty of the Effect of An Agency’s Failure to Report a
Covered Rule to Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

---

Congressional Review of Agency
Rulemaking: A Brief Overview and
Assessment After Five Years
Introduction
On March 29, 1996, the President signed into law the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBRFA), 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 virtually all federal agency rules. In its current
form, however, the efficacy of the review scheme as a vehicle to control agency
lawmaking through the exercise of responsible, effective and expeditious legislative
oversight may appear to some observers to be problematic. On the other hand,
several rules have been affected by the presence of the review scheme, suggesting that
the review scheme has had some influence. Among potential impediments to the law’s
full 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 Congress are in different political hands, as was the case
between April 1, 1996 and January, 2001. Moreover, a number of critical interpretive
issues, 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, and whether
a joint resolution of disapproval may be utilized to veto part or parts of a rule or only
may be directed at the rule in its entirety, remain to be resolved. Some might argue
that these potential impediments and uncertainties have contributed to the fact that a
total of nine joint resolutions of disapproval have been introduced since April 1996,
none of which was passed by either House. During that period over 21,500 major and
non-major rules have been reported and become effective. However, on March 1,
2001, a joint resolution to disapprove the Clinton Administration’s controversial
ergonomics rule was introduced in the Senate and may provide a definitive test of the
review mechanism efficacy and utility.
This report will provide a brief explanation of how the review scheme was
expected to operate and describe how it has in fact been utilized. The possible reasons
for the limited use of the formal review mechanism thus far are assessed and
congressional remedial proposals and other options are discussed.
Review of Agency Rules
The congressional review mechanism, codified at 5 U.S.C. 801-808, requires that
all agencies promulgating a covered rule must submit a report to each House of
Congress and to the Comptroller General (CG) that contains a copy of the rule, a

---

CRS-2
concise general statement describing the rule (including whether it is deemed to be a
major rule), and the proposed effective date of the rule. A covered rule cannot take
effect if the report is not submitted. Section 801(a)(1)(A). Each House must send
a copy of the report to the chairman and ranking minority member of each
jurisdictional committee. Section 801(a)(1)(C). In addition, the promulgating agency
must submit to the CG (1) a complete copy of any cost-benefit analysis; (2) a
description of the agency’s actions pursuant to the requirements of the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act of 1995; and (3) any other
relevant information required under any other act or executive order. Such
information must also be made “available” to each House. Section 801(a)(1)(B).
Section 804(3) adopts the definition of “rule” found at 5 U.S.C. 551(4) which
provides that the term rule “means the whole or part of an agency statement of
general . . . applicability and future effect designed to implement, interpret, or
prescribe law or policy.”1 The legislative history of Section 551 (4) indicates that
the term is to be broadly construed: “The definition of rule is not limited to
substantive rules, but embraces interpretive, organizational and procedural rules as
well.”2 The courts have recognized the breadth of the term, indicating that it
encompasses “virtually every statement an agency may make,”3 including interpretive
and substantive rules, guidelines, formal and informal statements, policy
proclamations, employee manuals and memoranda of understanding, among other
types of actions. Thus a broad range of agency action is potentially subject to
congressional review.
The Comptroller General and the Administrator of the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget have particular
responsibilities with respect to a “major rule,” defined as a rule that will likely have
an annual effect on the economy of $100 million or more, increase costs or process
for consumers, industries or state and local governments, or have significant adverse
effects on the economy. The determination of whether a rule is major is assigned
exclusively to the Administrator of OIRA. Section 804(2). If a rule is deemed major
by the OIRA Administrator, the CG must prepare a report for each jurisdictional
committee within 15 calendar days of the submission of the agency report required
by Section 801 (a)(1) or its publication in the Federal Register, whichever is later.
The statute requires that the CG’s report “shall include an assessment of the agency’s
compliance with the procedural steps required by Section 801(a)(1)(B).”4 Section
1Section 804(3) excludes from the definition “(A) any rule of particular applicability,
including a rule that approves or prescribes for the future rates, wages, prices, services, or
allowance therefore, corporate or financial structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing;
(B) any rule relating to agency management or personnel; or (C) any rule of agency
organization, or practice that does not substantially affect the rights or obligations on non-
agency parties.”
2Attorney General’s Manual on the Administrative Procedure Act 13 (1948).
3Avoyelles Sportmsmen’s League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983).
4See, e.g., Chem Service, Inc. v. EPA, 12 F.3d 1256 (3d Cir. 1993)(memorandum of
(continued...)

---

CRS-3
801(a)(2)(A). However, the CG has interpreted his duty under this provision narrowly
as requiring that he simply determine whether the prescribed action has been taken,
i.e., whether a required cost-benefit analysis has been provided, and whether the
required actions under the Regulatory Flexibility Act, the Unfunded Mandates Reform
Act of 1995, and any other relevant requirements under any other legislation or
executive orders were taken, not whether the action was properly done.
The designation of a rule as major also affects its effective date. A major rule
may become effective on the latest of the following scenarios: (1) 60 calendar days
after Congress receives the report submitted pursuant to Section 801(a)(1) or after
the rule is published in the Federal Register; (2) if Congress passes a joint resolution
of disapproval and the President vetoes it, the earlier of when one House votes and
fails to override the veto, or 30 calendar days after Congress receives the veto
message; or (3) the date the rules would otherwise have taken effect (unless a joint
resolution is enacted). Section 801(a)(3).
Thus the earliest a major rule can become effective is 60 calendar days after the
later of the submission of the report required by Section 801(a)(1) or its publication
in the Federal Register, unless some other provision of the law provides an exception
for an earlier date. Three possibilities exist. Under Section 808(2) an agency may
determine that a rule should become effective notwithstanding Section 801(a)(3)
where it finds “good cause that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.”5 Second, the President may
determine that a rule should take effect earlier because of an imminent threat to health
or safety or other emergency; to insure the enforcement of the criminal laws; for
national security purposes; or to implement an international trade agreement. Section
801(c). Finally, a third route is available under Section 801(a)(5) which provides that
“the effective date of a rule shall not be delayed by operation of this chapter beyond
the date on which either House of Congress votes to reject a joint resolution of
disapproval under Section 802.”
All other rules take effect “as otherwise allowed by law” after having been
submitted to Congress under Section 801(a)(1). Section 801(a)(4). Under the
Administrative Procedure Act a final rule may go into effect 30 days after it is
published in the Federal Register in final form. 5 U.S.C. 553(d). An agency, in its
4(...continued)
understanding); Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74 (4th
Cir. 1993)(interpretative rules); National Treasury Employees Union v. Reagan, 685 F.Supp
1346 (E.D. La 1988)(federal personnel manual letter issued by OPM); New York City
Employment Retirement Board v. SEC, 45 F.3d 7 (2d Cir. 1995)(affirming lower court’s
ruling that SEC “no action” letter was a rule within section 551(4)).
5Reviewing courts have generally applied the Administrative Procedure Act’s good cause
exemption, from which this language is obviously taken, narrowly in order to prevent agencies
from using it as an escape clause from notice and comment requirements. See, e.g., Action
on Smoking and Health v. CAS, 713 F.2d 795, 800 (D.C. Cir. 1987). However, since Section
805 precludes judicial review for any “determination, finding, action or omission under this
chapter”, there could be no court condemnation of a good cause determination. But the rule
would still be subject to congressional vacation and retroactive nullification.

---

CRS-4
discretion, may delay the effectiveness of a rule for a longer period; or it may put it
into effect immediately if good cause is shown.
All covered rules are subject to disapproval even if they have gone into effect.
Congress has preserved for itself a review period of at least 60 days. Moreover, if a
rule is reported within 60 session days of adjournment of the Senate or 60 legislative
days of adjournment of the House, the period during which Congress may consider
and pass a joint resolution of disapproval is extended to the next succeeding session
of the Congress. Section 801(d)(1). Such held over rules are treated as if they were
published on the 15th session day of the Senate and the 15th legislative day of the
House in the succeeding session and as though a report under Section 801(a)(1) was
submitted on that date. Section 801(d)(2)(A), (e)(2). But a held over rule takes
effect as otherwise provided. 801(d)(3). The opportunity for Congress to consider
and disapprove is simply extended so that it has a full 60 session or legislative days
to act in any session.
If a joint resolution of disapproval is enacted into law, the rule is deemed not to
have had any effect at any time. Section 801(f). If a rule that is subject to any
statutory, regulatory or judicial deadline for its promulgation is not allowed to take
effect, or is terminated by the passage of a joint resolution, any deadline is extended
for one year after the date of enactment of the joint resolution. Section 803. A rule
that does not take effect, or is not continued because of passage of a disapproval
resolution, may not be reissued in substantially the same form. Indeed, before any
reissued or new rule that is “substantially the same” as a disapproved rule can be
issued it must be specifically authorized by a law enacted subsequent to the
disapproval of the original rule. Section 801(b)(2).
Section 802(a) spells out the process for an up or down vote on a joint
resolution of disapproval. A joint resolution of disapproval must be introduced within
60 calendar days (excluding days either House or Congress is adjourned for more than
3 days during a session of Congress) after the agency reports the rule to the Congress
in compliance with Section 901(a)(1). Timely introduction of a disapproval resolution
allows each House 60 session or legislative days to pass it and thereby get the benefit
of expedited consideration procedures, retroactive nullification of an effective rule,
and the limitation on an agency from promulgating a “substantially similar” rule
without subsequent congressional authorization to do so by law.
The law provides an expedited consideration procedure for the Senate. If the
committee to which a joint resolution is referred has not reported it out within 20
calendar days after referral, it may be discharged from further consideration by a
written petition of 30 Members of the Senate, at which point the measure is placed
on the calendar. After committee report or discharge it is in order at any time for a
motion to proceed to consideration. All points of order against the joint resolution
(and against consideration of the measure) are waived, and the motion is not subject
to amendment, postponement, or to a motion to proceed to other business. If the
motion to consider is agreed to, it remains as unfinished business of the Senate until
disposed of. Section 802(d)(1). Debate on the floor is limited to 10 hours.
Amendments to the resolution and motions to postpone or to proceed to other

---

CRS-5
business are not in order. Section 802(d)(2). At the conclusion of debate an up or
down vote on the joint resolution is to be taken. Section 802(d)(3).6
There is no special procedure for expedited consideration and processing of joint
resolutions in the House. But if one House passes a joint resolution before the other
House acts, the measure of the other House is not referred to a committee. The
procedure of the House receiving a joint resolution “shall be the same as if no joint
resolution had been received from the other House, but . . . the vote on final passage
shall be on the joint resolution of the other House.” Section 802(f)(1)(2).
Section 805 precludes judicial review of any “determination, finding, action or
omission under this chapter.” This would insulate from court review, for example,
a determination by the OIRA Administrator that a rule is major or not, a presidential
determination that a rule should become effective immediately, an agency
determination that “good cause” requires a rule to go into effect at once, or a question
as to the adequacy of a Comptroller General’s assessment of an agency’s report.
Finally, the law provides a rule of construction providing that a reviewing court
shall not draw any inference from a congressional failure to enact a joint resolution
of disapproval with respect to such rule or a related statute. Section 801(g).
Utilization of the Review Mechanism since 1996
As of February 28, 2001, the Comptroller General had submitted reports
pursuant to section 801 (a) (2) (A) to Congress on 336 major rules.7 In addition,
GAO had cataloged the submission of 21,249 non-major rules as required by Section
801 (a) (1) (A). To date, nine (9) joint resolutions of disapproval have been
introduced relating to five rules.8 None has been passed by either House. If there is
6There is some question whether a motion to proceed is nondebatable because of the absence
of language so stating. Arguably, the nondebatability of the motion is integral both to the
scheme of the expedited procedure provisions as well as to the overall efficacy of the CRA’s
statutory scheme and thus may be implied. Alternatively, debate on such a motion may be
limited by Section 803(d)(2) which limits debate on joint resolutions, as well as “all debatable
motions,” to 10 hours. Ultimately, a resolution of this question by the Senate Parliametarian,
or the Senate itself, may be necessary. At least one precedent exists in which it was ruled that
a motion to proceed to a budget resolution under the Budget Act was nondebatable despite the
silence of the Act on the matter. See, 127 Cong. Rec. S 4871 (May 12, 1981).
7General Accounting Office, Reports on Federal Agency Major Rules, which may be found
at http://www.gao.gov/decisions/majrule/majrule.htm
8Identical joint resolutions were introduced in both Houses with respect to two rules. The
disapproval resolutions introduced include: S.J.Res. 60 (104th Cong., 2d sess.) (HCFA rule
relating to hospital reimbursement under the Medicare program); H.J.Res. 59 (105th Cong.,
1st Sess.) H.J.Res. 123 (105th Cong., 2d Sess.) (same).(Department of Interior rule relating
to polar bear trophies from Canada); H.J.Res. 81 (105th Cong., 1st Sess.) (FCC rule relating
agency’s revision of its cable-tv leased commercial access rules); H.J.Res. 67 (105th Cong.,
1st Sess.) (OSHA rule relating to occupational exposure to methylene chloride); S.J.Res. 25
(105th Cong., 1st Sess.) (same); S.J.Res. 50 (105th Cong., 2d Sess.) (HCFA rule relating to
(continued...)

---

CRS-6
any discernible pattern to the introduced resolutions, it is to exert pressure on the
subject agencies to modify or withdraw the rule, or to elicit support of members,
which in some instances was successful. For example, H.J.Res. 67 (1997) was aimed
at disapproving an Occupational Health and Safety Administration (OSHA) rule
setting exposure limits on methylene chloride, a paint stripper used in the furniture
and airplane industries. Its sponsor, Rep. Roger Wicker, contended that the rule
would harm small businesses without increasing protections for workers. The
disapproval resolution never received a floor vote. But the Congressman succeeded
in effecting a compromise through the inclusion of provisions in the FY 1998 Labor,
HHS and Educations appropriations measure9 which required OSHA to provide on-
site assistance for companies to comply with the new rules without fear of penalty.
Mr. Wicker is reported to have stated that he used the disapproval resolution as a
vehicle to gather support from influential members, including the chairs of the House
Appropriations and Commerce Committees.10
The disapproval resolution mechanism was effectively utilized to accomplish the
suspension of a highly controversial rulemaking by the Health Care Financing
Administration (HCFA). In January 1998, HCFA issued a rule requiring that home
health agencies (HHA’s) participating in the Medicare program must obtain a surety
bond that is the greater of $50, 000 or 15 percent of the annual amount paid to the
HHA by the Medicare program. In addition, a new HHA entering the Medicare or
Medicaid program after January 1, 1998, had to meet a capitalization requirement by
showing it actually had available sufficient capital to start and operate the HHA for
the first three months. The rule was issued without the usual public participation
through notice and comment and was made immediately effective. Substantial
opposition to the rule quickly surfaced from both surety and HHA industry
representatives. HCFA attempted to remedy the complaints by twice amending the
rule, in March and in June, but were unsuccessful in quelling the industry-wide
concerns. On June 10, Senator Bond, for himself and 13 other co-sponsors,
introduced S.J.Res. 50 to disapprove the June 1 HCFA rule. Within a short period,
the disapproval resolution had garnered 52 sponsors. On June 17, a companion bill,
H.J.Res. 123, was introduced in the House. Thereafter, members of the staffs of
Senators Bond, Baucus, and Grassley (all members of the Senate Finance Committee
with jurisdiction over the agency) met with HCFA officials and concluded an
agreement that (1) the agency would suspend its June 1, 1998 rule indefinitely; (2) a
General Accounting Office report would be requested by the committee that would
study the issues surrounding the surety bond requirement; (3) on completion and
issuance of the GAO report, HCFA would work in consultation with the Congress
about the surety bond requirement; and (4) any new rule would not be effective earlier
than February 15, 1999, and would be preceded by at least 60 days prior notice. The
agreement was memorialized in a June 26 letter to HCFA signed by Senators Bond,
8(...continued)
surety bond requirements for home health agencies); H.J.Res. 55, 106th Cong.
(1999)(concerning Postal Service rule relating to delivery of mail to a commercial mail
receiving agency).
9P.L. 105-78.
10See Allan Freedman, “GOP’s Secret Weapon Against Regulations: Finesse,” CQ Weekly,
September 5, 1998, at 2318-19 (Freedman).

---

CRS-7
Baucus and Grassley.11 The GAO report was issued on January 29, 1999, but as yet
the rule remains suspended. No floor vote on the disapproval resolutions occurred
in either House.
A final interesting illustration of the manner in which the review mechanism has
been utilized is shown by S.J.Res. 60 (1996), concerning another HCFA rule, this one
dealing with the agency’s annual revision of the rates for reimbursement of Medicare
providers (doctors and hospitals), which normally would have been effective on
October 1, 1996. HCFA, however, submitted the rule to Congress on August 30,
1996, and since it was a major rule, it could not go into effect for 60 days, or until
October 29, which meant there would be a significant loss of revenues because the
differential rate increases could not be imposed for most of the month of October.
Section 801 (a) (5), however, provides that if a joint resolution of disapproval is
rejected by one House, “the effective date of a rule shall not be delayed by operation
of this chapter...” On the morning of September 17, 1996, Senator Lott introduced
S.J.Res. 60 and that afternoon, by unanimous consent, the resolution “was deemed
not passed.” See 142 Cong. Rec. S 10723 (daily ed. Sept. 17, 1996). The HCFA rule
went into effect on October 1 as scheduled.
Discussion
After five years, the limited use to which the formal rulemaking review
mechanism has been put does not appear to be solely, or in any significant measure
attributable to, a lack of familiarity with the law, but rather points to the recognition
that aspects of the review process may be serving as deterrents to its full use.
Additionally, several significant emerging interpretive issues concerning the scope of
the law’s coverage, the judicial enforceability of its key requirements, and whether a
disapproval resolution may be directed at part of a rule, may introduce further
uncertainties and impediments to confident use of the process, and the potential
breadth of the prohibition against promulgation by an agency or a “substantially
similar” rule after the original rule has been vetoed.
1. Lack of a Screening Mechanism to Pinpoint Rules That Need
Congressional Review. The lack of a screening mechanism that will alert
committees to rules that may raise important or sensitive substantive issues arguably
prevents busy committees from prioritizing such issues. As indicated above, the
Comptroller General’s reports on major rules are essentially check lists as to whether
legally required agency tasks have been done and not substantive assessments of
whether they were done properly or whether the rules accord with congressional
intent. Indeed, lack of knowledge of the existence of such sensitive rules by
jurisdictional committees or interested members is rarely the case. What appears to
be absent is in-depth scrutiny and analysis of individual rules by an authoritative and
presumably neutral source that may provide the basis for triggering meaningful
congressional review.
Recognition of the need for an independent substantive screening body
apparently motivated the introduction by Rep. Sue Kelly of H.R. 1704 in the 105th
11Freedman, supra note 10, at 2319-20.

---

CRS-8
Congress, a bill that would establish a Congressional Office of Regulatory Analysis.12
The bill was referred to the House Judiciary and Governmental Reform and Oversight
Committees both of which favorably reported differing versions of the legislation.13
Both versions would establish an independent Congressional Office of Regulatory
Analysis (CORA) to be headed by a director appointed by the House Speaker and the
Senate Majority Leader for a term of four years, with service in the office limited to
no more than three terms. The current review functions of the Comptroller General
under SBRFA and the Congressional Budget Office under the Unfunded Mandates
Act of 1995 would be transferred to CORA. The Judiciary Committee’s version, in
addition to having the Office make “an assessment of an agency’s compliance with the
procedural steps for ‘major rules’” required by SBRFA, directs CORA to “conduct
its own regulatory impact of these ‘major rules.’”14 The bill as reported by the
Government Reform Committee allows the CORA director to use “any data and
analyses generated by the Federal agency and any data of the Office” in analyzing the
submitted rule. Both bills provide that a similar analysis of non-major rules is to be
conducted when requested to do so by a House or Senate Committee or by individual
members of either House. First priority for the conduct of such analyses is given to
all major rules. Secondary priority is assigned to committee requests. Tertiary
priority is given individual member requests. Finally, under the Judiciary Committee
version, the report must be furnished within 45 days after Congress receives
notification of the rule; the Governmental Reform bill would allow 30 days. H.R.
1704 received no floor action during the 105th Congress.
Some argue that an independent office of regulatory analysis would serve the
congressional need for objective information necessary to evaluate agency regulations.
It might also provide credibility and impetus to utilize the review mechanism. Further,
by providing intensive review of certain non-major rules, the possibility of OIRA
“hiding” significant rules by not designating them as “major” is forestalled. Objections
may be heard that creation of a new congressional bureaucracy for review purposes
would be unnecessarily duplicative of what the agencies have already done as well as
extraordinarily expensive. The requirement of the Judiciary Committee’s version that
CORA do its own cost-benefit analysis from scratch could be pointed to as an
unnecessary cost factor, as well as a task that may not be possible to perform
adequately within the allotted 45 days.
Congress agreed upon a limited test of the CORA concept, late in the 106th
Congress, with the passage of the Truth in Regulatory Act of 2000, Pub.L. 106-312,
114 Stat. 1248-50. That legislation established a three year pilot project for the
General Accounting Office to report to Congress on economically significant rules.
Under this pilot program whenever an agency publishes an economically significant
proposed or final rule, a chairman or ranking minority member of a committee of
jurisdiction of either House of Congress may request the Comptroller General (CG)
to review the rule. The CG is to report on each rule within 180 calendar days. The
12A companion bill, S. 1675, was introduced in the Senate by Senators Shelby and Bond. 143
Cong. Rec. S1007 (daily ed. Feb. 25, 1998).
13See H.Rept. 105-441, Parts 1 and 2 (105th Cong., 2d Sess.) (1998).
14Section 4 (a) (3) (A).

---

CRS-9
report must contain an “independent evaluation” by the CG of the agency’s cost-
benefit analysis. Thus far we are aware of only one request, which was submitted in
January 2001 by the chairs of the jurisdictional committees of the House and Senate
over the Department of Agriculture’s forest planning and roadless area rule. GAO
advised the requesters that although Act authorized $5.2 million per year for the
program, no monies had been appropriated and it could not proceed with the request.
No further action was taken on the request and as yet Congress has not enacted an
appropriation thereby forestalling implementation of the project. The 180-day
reporting period does not mesh exactly with the time period under the CRA for
consideration of rules subject to resolution of disapproval, although completed
requests for analyses of proposed rules might coincide with such reviews. The pilot
program is to expire in January 2004.
2. Lack of an Expedited House Procedure. The current absence of an
expedited consideration procedure in the House of Representatives may well be a
factor discouraging use of the process in that body since, as a practical matter, it will
mean engaging the House leadership each time a rule is deemed important enough by
a committee or group of Members to seek speedy access to the floor. In view of the
limits both on floor time and the ability to gain the attention of the leadership, perhaps
only the most well situated in the body will be able to gain access within the limited
period of review. This also might deter action in the Senate if it is perceived that no
action will be taken in the House.
3. The Deterrent Effect of the Ultimate Need for a Supermajority to
Veto a Rule. A consideration behind any serious effort to use the full CRA review
mechanism likely has been the realization that any joint resolution disapproving a rule
that has the support of the administration would be vetoed and require a two-thirds
vote in each House to override. The deterrent potential of the need for a
supermajority in each House to overcome a presidential veto is significant, unless the
object of the exercise is simply to provide the impetus for informal accommodations,
such as occurred in the HCFA surety bond matter, or to influence Members to
support remedial legislation. But a realization by agencies over time that passage of
a disapproval resolution is highly unlikely could substantially reduce the efficacy of
such a threat. Additionally, a possible consequence of such an assumption is that
agencies will not factor in congressional disapproval as part of rule development
process. The validity of this assumption may soon be tested. On March 1, 2001
Senator Nickles and three co-sponsors introduced S.J.Res. 6 to disapprove the
Clinton Administration’s controversial ergonomics rule. See 65 Fed. Reg. 68261
(2000). It has been reported that the President has indicated he will sign a disapproval
resolution if presented to him. It has also been reported that a discharge petition
signed by 30 or more Senators has been filed. If so, the stage is set for the first truth
test of the CRA.
Even if disapproval of the ergonomics rules is successful, the supermajority flaw
still remains. One possible solution is to establish a multi-tiered disapproval
mechanism. That is, instead of all rules, major or non-major, being treated equally in
that they can only be overturned by a joint resolution of disapproval, a process in
which the entire burden of action is on the Congress, some rules might be designated
for more selective, special review. For example, major or significant rules might be
subject to a joint resolution of approval. Under such a scheme a major or significant

---

CRS-10
rule would not become effective unless a joint resolution approving it passed both
Houses within a specified period of time.15 To make such scheme effective someone
or some body other than the OIRA Administrator or a congressional agency such as
the proposed CORA might have to be vested with the authority to designate which
rules are “major” or “significant” and thereby subject to the affirmative approval
requirement. The obvious benefit from the congressional standpoint is that the burden
for supporting and justifying such rules falls on the promulgating agencies. All other
rules would be subject to disapproval resolutions.16
4. The Reluctance to Disapprove an Omnibus Rule Where Only
One Part of the Rule Raises Objection. Section 808 of the review provision
sets forth the mandatory text of any joint resolution of disapproval: “That Congress
disapproves the rule submitted by the relating , and such
rule shall have no force or effect. (The blank spaces being appropriately filled in).”
The quoted text refers to “the rule” and “such rule,” indicating a rule in its entirety.
The limited experience of nine joint resolutions of disapproval thus far introduced is
that the first blank is filled with the name of the promulgating agency and the second
with a generic title or description of the rule.17 Similarly, the text of the review
provision refers to “such rule,” “a rule,” or “the rule,” with no language anywhere
expressly referring in any manner to a part of any rule under review. The procedure
leading to a vote on the proposed disapproval resolution allows for no amendments,
and the final vote is up or down on the joint resolution as introduced.
The legislative history of the provision is similarly uniform in using language that
would ordinarily indicate a reference to a submitted rule in its entirety, except in one
instance. During a discussion of the Section 802 procedure that would obtain when
one House completes its action on a joint resolution and sends to it to the other
House before the second House has yet to complete any action, the following
comment is made:
. . .Subsection 802(f) sets forth one unique provision that does
not expire in either House. Subsection 802(f) provides
procedures for passage of a joint resolution of disapproval when
one House passes a joint resolution and transmits it to the other
House that has not yet completed action. In both Houses, the
joint resolution of the first House to act shall not be referred to
a committee but shall be held at the desk. In the Senate, a
15See e.g., Reorganization Act Amendments of 1984, providing that both Houses of Congress
had to pass a joint resolution approving a reorganization plan within 90 days of continuous
session after the date of presidential submission or else it was deemed disapproved. 5 U.S.C.
906 (a) (1994).
16Two bills introduced in the 106th Congress to revise the CRA utilized the joint resolution of
approval approach. See S. 1348, 106th Cong., 1st Sess. (1999)(Sen. Brownback) S. 2670,
106th Cong., 2nd Sess. (2000)(Sen. Thomas). A similar was suggested and described in
Morton Rosenberg, “Whatever Happened to Congressional Review of Agency Rulemaking?
A Brief Overview, Assessment and Proposal for Reform,” 51 Adm.L.Rev. 1051 (1999).
17S.J.Res. 50 and H.J.Res. 123, “relating to surety bond requirements for home health
agencies under the medicare and medicaid programs....”

---

CRS-11
House-passed resolution may be considered directly only under
normal Senate procedures, regardless of when it is received by
the Senate. A resolution of disapproval that originated in the
Senate may be considered under the expedited procedures only
during the period specified in subsection 802(e). Regardless of
the procedures used to consider a joint resolution in either
House, the final vote of the second House shall be on the joint
resolution of the first House (no matter when that vote takes
place). If the second House passes the resolution, no conference
is necessary and the joint resolution will be presented to the
President for his signature. Subsection 802(f) is justified
because subsection 802(a) sets forth the required language of
a joint resolution in each House, and thus, permits little
variance in the joint resolutions that could be introduced in
each House.18 (Emphasis supplied).
The last two sentences seem to raise some uncertainty. The next to last sentence
would appear to contemplate the possibility of a conference to resolve differences in
resolutions. The last sentence minimizes what those differences could be. Some have
suggested that the explanation contemplates that parts of rules may be the subject of
disapproval resolutions, arguing that the framers of the provision would have known
that many rules are complex and contain a variety of provisions, only one or a few of
which may be objectionable, and would not have required a whole rulemaking to be
brought down simply because of one offending portion out of many. It might also be
argued that in light of the Section 801 (b) (2) prohibition against agency issuance of
a rule “in substantially the same form” after passage of a disapproval resolution unless
Congress by subsequent law authorizes it, not allowing partial vetoes would have a
draconian result.
In fact, this result would appear to have been the intent of the framers of the
review provision. The language and structure of the provision, and the supporting
explanation of the legislative history, contemplates a speedy, definitive and limited
process. It is not unlike the legislative processes created for congressional actions
dealing with military base closings,19 international trade agreements,20 and presidential
reorganization plans,21 among others. Each dealt with complex, politically sensitive
decisions which allowed only an up or down vote by the Congress on the entire
package presented. It was understood that piecemeal consideration would delay and
perhaps obstruct legislative resolution of the issues before it. For similar reasons, the
statutory structure and legislative history of the review provision strongly indicate that
Congress intended the process to focus on submitted rules as a whole and not to
18Joint Explanatory Statement of House and Senate Sponsors, 143 Cong. Rec. E 571, at E 577
(daily ed. April 19, 1996); 143 Cong. Rec. S 3683, at S 3686 (daily ed. April 18,
1996)(Legislative History).
19Defense Base Closure and Realignment Act of 1990, P.L. 101-510, sec. 2908 (b) 104 Stat.
1808, in note following 10 U.S.C. 2687 (1994).
20See, 19 U.S.C. 2191-2193 (1994).
21See, e.g., Reorganization Act of 1984, 5 U.S.C. 909-912 (1994).

---

CRS-12
allow veto of individual parts. Perhaps a proper reading of the quoted portion of the
legislative history is that it was contemplating the possibility that the blank to be filled
in after “relating to” might have different generic descriptions of the rule subject to
disapproval. A broader reading of these sentences would not otherwise appear
warranted by either the legislative language itself or the rest of the explanatory
legislative history.
However, if this reading is correct it may be a factor in the limited use of the
mechanism. As indicated, vetoing a rule means disabling an agency from regulating
in the area covered by the rule unless Congress passes further authorization
legislation, a significant consequence of any disapproval action. On the other hand,
expressly authorizing veto of portions of a rule might allow competing disapproval
resolutions within each House and the certainty of a long, drawn out conference with
the possibility of no agreement.
5. The Uncertainty of Which Rules Are Covered By SBRFA. The
framers of the congressional review provision intentionally adopted the broadest
possible definition of the term “rule” when it incorporated Section 551 (4) of the
APA. As indicated previously,22 the legislative history of Section 551 (4) and the case
law interpreting it make it clear that it was meant to encompass all substantive
rulemaking documents – such as policy statements, guidances, manuals, circulars,
memoranda, bulletins and the like – which as a legal or practical matter an agency
wishes to make binding on the affected public.
The legislative history of the SBRFA provision emphasizes that by adoption of
the Section 551 (4) definition of rule, the review process would not be limited only
to coverage of rules required to comply with the notice and comment provisions of
the APA or any other statutorily required variation of notice and comment
procedures, but would rather encompass a wider spectrum of agency activities
characterized by their effect on the regulated public: “The committee’s intent in these
subsections is . . . to include matters that substantially affect the rights or obligations
of outside parties. The essential focus of this inquiry is not on the type of rule but on
its effect on the rights and obligations of non-agency parties.”23 The framers of the
legislation indicated their awareness of the now widespread practice of agencies
avoiding the notification and public participation requirements of APA notice-and-
comment rulemaking by utilizing the issuance of other, non-legislative documents as
a means of binding the public, either legally or practically,24 and noted that it was the
intent of the legislation to subject just such documents to congressional scrutiny:
. . . The committees are concerned that some agencies have
attempted to circumvent notice-and-comment requirements by
22See footnotes 1-4, supra, and accompanying text.
23Legislative History, supra n. 18, at E 579, S 3687.
24This practice has been long recognized and criticized in administrative law commentaries.
See, e.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and
the Like– Should Federal Agencies Use Them To Bind The Public?, 41 Duke L.J. 1311
(1992). Cf. also, General Accounting Office, Federal Rulemaking: Agencies Often Published
Final Actions Without Proposed Rules, GAO/GGD-98-126 (August 1998).

---

CRS-13
trying to give legal effect to general statements of policy,
“guidelines,” and agency policy and procedure manuals. The
committees admonish the agencies that the APA’s broad
definition of “rule” was adopted by the authors of this legislation
to discourage circumvention of the requirements of chapter 8.25
It is likely that virtually all the 21,249 non-major rules thus far reported to the
Comptroller General have been either notice and comment rules or agency documents
required to be published in the Federal Register. This would mean that perhaps
thousands of covered rules have not been submitted for review.26 Pinning down a
concrete number is difficult since such covered documents are rarely if ever published
in the Federal Register and thus will come to the attention of committees or Member
only serendipitously. Five such agency actions have come to the attention of
committee chairmen and a Member and were referred to the Comptroller General for
determinations whether they were covered rules. In four of the five cases the CG
determined the action documents to be covered rules.27
Believing such instances to be only a small portion of unreported agency actions,
GAO, at the behest of the House Government Reform and Oversight Subcommittee
on National Economic Growth, Natural Resources, and Regulatory Affairs, engaged
25Legislative History, supra n. 18, at E 578, S 3687.
26An indication of the vast number of unreported covered rules came as a result of an
investigation by the House Subcommittee on National Economic Growth, Natural Resources,
and Regulatory Affairs (Government Reform) which revealed that 7,523 guidance documents
issued by the Department of Labor, the Environmental Protection Agency, the Department of
Transportation which were of general applicability and future effect had not been submitted
for CRA review during the period March 1996 through November 1999. See “Non-Binding
Legal Effect of Agency Guidance Documents,” H.Rept. No. 106-1009, 106th Cong., 2nd Sess.
(2000).
27See letter to Honorable David M. McIntosh, Subcommittee on National Economic Growth,
Natural Resources, and Regulatory Affairs, House Committee on Government Reform and
Oversight, B-281575 (January 20, 1999 (EPA “Interim Guidance for Investigating Title VI
Administrative Complaints Challenging Permits” held to be covered because it created new,
mandatory steps in the procedure for handling disparate impact assessments which gave
recipients new rights they did not previously possess for obtaining complaint dismissals, a
substantive alteration of the previous regulation.); letter to Honorable Ted Stevens, Chairman,
Senate Appropriations Committee, et al, B-275178 ( July 3, 1997) (Tongass National Forest
Land and Resources Management Plan held an agency statement of general applicability and
future effect that implements, interprets, and prescribes law and policy.); letter to Honorable
Larry Craig, Chairman, Senate Committee on Energy and Resources, B-274505 (September
16, 1996) (memorandum of Secretary of Agriculture concerning the Emergency Salvage
Timber Sale Program held to a covered rule because it is of general applicability and
interprets and implements the statutory program.); and letter to Senator Conrad Burns, B-
278224 (November 10, 1997) (the American Heritage River Initiative announced by the
Council on Environmental Quality was not a covered rule because it was established by
presidential executive order and direction and the President is not an “agency” under the APA
and is not subject to the provisions of the APA.); letter to the Hon. James A. Leach,
Chairman, House Banking Committee, B-286338 (October 17, 2000)(Farm Credit
Administration’s national charter initiative held to be a rule under the CTA).

---

CRS-14
in discussions with the Office of Management (OMB) during 1998 for the creation of
a uniform reporting form for use by agencies in reporting covered rules to the CG,
and for the promulgation of an OMB guidance document covering such matters under
the review provision as the definition of a covered rule, reporting requirements, the
good cause exemption, and the consequences of failing to report a rule, among others.
The failure to issue such a guidance prompted insertion of the following directive in
FY 1999 appropriation for OMB: “OMB is directed to submit a report by March 31,
1999, to the Committees on Appropriations, the Senate Committee on Governmental
Affairs, and the House Committee on Government Reform and Oversight that . . .
issues guidance on the requirements of 5 U.S.C. Sec. 801 (a) (1) and (3); sections 804
(3), and 808 (2), including a standard new rule reporting form for use under section
801 (a)(1)(A)-(B).”28 OMB, in the view of the Subcommittee, failed to substantially
comply with that statutory directive.29
If the guidance issued in compliance with the statutory direction is not consonant
with the congressional understanding of the intent, meaning and scope of the
congressional review provision, it might be used as a vehicle for oversight hearings
and possible remedial legislation.
6. The Uncertainty of the Effect of An Agency’s Failure to Report
a Covered Rule to Congress. Section 801 (a) (1) (A) of the congressional
review provision provides that “[b]efore a rule can take effect,” the Federal agency
promulgating such rule shall submit to each House of Congress and the Comptroller
General a report containing the text of the rule, a description of the rule, including
whether it is a major rule, and its proposed effective date. Section 805 states that “no
determination, finding, action or omission under this chapter shall be subject to
judicial review.” The Department of Justice has broadly hinted that the language of
Section 805 “precluding judicial review is unusually sweeping” so that it would
presumably prevent judicial scrutiny and sanction of an agency’s failure to report a
covered rule.30 Arguably, the text and structure of the review provision, together
with its clearly articulated purpose in its legislative history, make it likely that a
reviewing court would find that it was empowered to enforce the submission
requirement of Section 801(a)(1)(A). However, if a legislative revision of the review
provision is undertaken, clarifying the judicial enforceability of a failure to report
would forestall unnecessary litigation.
The plain, overarching purpose of the review provision of SBRFA was to assure
that all covered final rulemaking actions of agencies would come before Congress for
scrutiny and possible nullification through joint resolutions of disapproval.31 The
28P.L. 105-277, Division A, title III.
29See H.Rept. 106-1009, supra n. 26 at 4-5.
30See letter dated June 11, 1997 to the Honorable Lamar Smith, Chairman, Subcommittee on
Immigration and Claims, Senate Judiciary Committee, from Andrew Fois, Assistant Attorney
General, Office of Legislative Affairs, DOJ, and accompanying analysis dated June 10, 1997,
at pp 9-11 (DOJ Memorandum).
31“This legislation establishes a government-wide congressional review mechanism for most
(continued...)

---

CRS-15
scheme provides for the delayed effectiveness of some rules deemed innately
important (“major rules”), Section 801(a)(3), and temporarily waives the submission
requirement of Section 801 for rules establishing, modifying, opening, closing or
conducting a regulatory program for a commercial, recreational, or subsistence
activity related to hunting, fishing, or camping, or for a rule an agency “for good
cause” finds that notice and public procedure are impractical, unnecessary, or contrary
to the public interest. Section 808. Rules promulgated pursuant to the
Telecommunications Act of 1996 are excluded from the definition of “major rule”.
But all such rules must ultimately be submitted for review. And while the scheme
anticipates that some (or even most) rules will go into effect before a joint resolution
of disapproval is passed, the law provides that enactment of a joint resolution
terminates the effectiveness of the rule and that the rule will be treated as though it
had never taken effect. Sections 801(b)(1), 801(f). Further, a rule that has been
nullified cannot be reissued by an agency in substantially the same form unless it is
specifically authorized to do so by law after the date of the disapproval. Section
801(b)(2).
The review scheme also requires a variety of actions by persons or agencies in
support of the review process, and time for such actions to be scrutinized by both
Houses to implement the scheme. Thus, the Comptroller General must submit a
report to Congress on each major rule submitted within 15 calendar days after its
submission or publication of the rule (Section 801(a)(2)(A)); the Administrator of
OIRA determines whether a rule is a “major rule” (Section 804(2)); and after a rule
is reported the Senate has 60 session days, and the House 60 legislative days, to pass
a disapproval resolution under expedited procedures. Section 802. But Congress has
preserved for itself a period of review of at least 60 session or legislative days.
Therefore, if a rule is reported within 60 session days of the Senate (or 60 legislative
days of the House) prior to the date Congress adjourns a session of the Congress, the
period during which Congress may consider and pass a joint resolution of disapproval
is extended to the next succeeding session of the Congress. Section 801(d)(1).
Thus the statutory scheme is geared toward congressional review of all covered
rules at some time; and a reading of the statute that allows for easy avoidance defeats
that purpose. Interpreting the judicial review preclusion provision to prevent court
scrutiny of the validity of administrative enforcement of covered but non-submitted
rules appears to be neither a natural nor warranted reading of the provision. Section
805 speaks to “determination[s], finding[s], action[s], or omission[s] under this
chapter,” a plain reference to the range of actions authorized or required as part of
the review process. Thus Congress arguably did not intend, as is more fully described
below, to subject either its own internal procedures to judicial scrutiny, or the validity
of Presidential determinations that rules should become effective immediately for
specified reasons, or the propriety of OIRA determinations whether rules are major
or not, or whether the Comptroller General properly performed his reporting function.
These are matters that Congress can remedy by itself. However, without the potential
31(...continued)
new rules. This allows Congress the opportunity to review a rule before it takes effect and to
disapprove any rule to which Congress objects.” Legislative History, supra note 18, at E 575
and S 3683.

---

CRS-16
of court invalidation of enforcement actions based on the failure to submit covered
rules, agencies are not likely to comply with submission requirements. If Section 805
is read so broadly, it would arguably render ineffective as well the Section 801(b)(2)
prohibition against an agency promulgating a new rule that is “substantially the same”
as a disapproved rule unless it “is specifically reauthorized by a law enacted after”
the passage of a disapproval resolution. It is more than likely that a determination
whether a new or reissued rule is “substantially the same” as a disapproved rule is one
that a court will be asked to make.32 Congress appears to have contemplated (and
approved) judicial review in this and other situations when it provided in Section
801(g) that “[i]f Congress does not enact a joint resolution of disapproval under
section 802 respecting a rule, no court or agency may infer any interest of the
Congress from any action or inaction of the Congress with regard to such rule, related
statute, or joint resolution of disapproval.”
The legislative history of the review provision confirms this view of the limited
reach of the judicial review preclusion language. A key sponsor of the legislation,
Rep. McIntosh, explained during the floor debate on H.R. 3136 that “Under Section
8(a)(1)(A), covered rules may not go into effect until the relevant agency submits a
copy of the rule and an accompanying report to both Houses of Congress.” 143
Cong. Rec. H3005 (daily ed. March 28, 1996).
Shortly thereafter, the principal Senate and House sponsors of H.R. 3136
published a Joint Explanatory Statement in the Congressional Record providing a
detailed explanation of the provisions of the congressional review provision of
SBRFA and its legislative history. Senator Nickles explained:
Mr. NICKLES. Mr. President, I will submit for the
RECORD a statement which serves to provide a detailed
explanation and a legislative history for the congressional review
title of H.R. 3136, the Small Business Regulatory Enforcement
Fairness Act of 1996. H.R. 3136 was passed by the Senate on
March 28, 1996, and was signed by the President the next day .
32Potential disapproval of the ergonomics rule underlines the necessity for judicial review in
certain instances where enforcement is necessary and appropriate to support the statutory
scheme. If that rule, which is broad and encompassing in its regulatory scope, is vetoed, the
question will arise as to how far can the agency go before it reaches the point of substantial
similarity in its promulgation of a substitute, a matter not addressed by either the statute or
its sparse legislative history. If the new rule is not again disapproved by the Congress and is
then challenged in court, the failure of Congress to act under its CRA authority cannot be used
as an indication of congressional intent one way or another. Section 801(g). As a
consequence, a reviewing court would likely look for guidance in the floor debates that led to
the original disapproval for clues as to what provisions of the rule provoked the veto action.
If those reasons are discernable and were not addressed in the agency’s revirsed rule, a court
might find substantial similarity and reject the rule. If the debates do not provide such
guidance the court will be effectively left to its own devices to define a resolution. Congress
could, of course, enact a new authorization but is not required to. Indeed, the structure and
legislative history of the CRA indicate that it was aware of the potentially draconian results
of passage of a disapproval resolution. See Legislative History, supra, note 18 at E 577 and
S 3686.

---

CRS-17
. . Because title III of H.R. 3136 was the product of negotiation
with the Senate and did not go through the committee process,
no other expression of its legislative history exists other than the
joint statement made by Senator REID and myself immediately
before passage of H.R. 3136 on March 28. I am submitting a
joint statement to be printed in the RECORD on behalf of
myself, as the sponsor of the S. 219, Senator REID, the prime
co-sponsor of S. 219, and Senator STEVENS, the chairman of
the Committee on Governmental Affairs. This joint statement is
intended to provide guidance to the agencies, the courts, and
other interested parties when interpreting the act’s terms. The
same statement has been submitted today in the House by the
chairmen of the committees of jurisdiction over the congressional
review legislation.33
The Joint Explanatory Statement is clear as to the scope and limitation of the
judicial review provision:
Limitation on judicial review of congressional or administrative actions
Section 805 provides that a court may not review any
congressional or administrative “determination, finding, action,
or omission under this chapter”. Thus, the major rule
determinations made by the Administrator of the Offices of
Information and Regulatory Affairs of the Office of Management
and Budget are not subject to judicial review. Nor may a court
review whether Congress complied with the congressional
review procedures in this chapter. This latter limitation on the
scope of judicial review was drafted in recognition of the
constitutional right of each House of Congress to “determine the
Rules of its Proceedings”. U.S. Const. art. I, §5, cl. 2, which
includes being the final arbiter of compliance with such Rules.
The limitation on a court’s review of subsidiary
determinations or compliance with congressional procedures,
however, does not bar a court from giving effect to a resolution
of disapproval that was enacted into law. A court with proper
jurisdiction may treat the congressional enactment of a joint
resolution of disapproval as it would treat the enactment of any
other federal law. Thus, a court with proper jurisdiction may
review the resolution of disapproval and the law that authorized
the disapproved rule to determine whether the issuing agency has
the legal authority to issue a substantially different rule. The
language of subsection 801(g) is also instructive. Subsection
801(g) prohibits a court or agency from inferring any intent of
the Congress only when “Congress does not enact a joint
resolution of disapproval”, or by implication, when it has not yet
done so. In deciding cases or controversies properly before it,
33Legislative History, supra note 18, at 143 Cong. Rec. S 3683.

---

CRS-18
a court or agency must give effect to the intent of the Congress
when such a resolution is enacted and becomes the law of the
land. The limitation on judicial review in no way prohibits a
court from determining whether a rule is in effect. For example,
the authors expect that a court might recognize that a rule has no
legal effect due to the operation of subsections 801(a)(1)(A) or
801(a)(3).34
The Justice Department has suggested that such post-enactment legislative
history should not carry any weight, particularly in view of the unambiguous nature
of the preclusion language at issue.35 However, as discussed below, the courts appear
to have taken a contrary view in analogous interpretive situations.
The Joint Explanatory Statement is a contemporaneous explanation of the
congressional review provision by the legislative sponsors of the legislation which is
consonant with the text and structure of the legislation. Such statements by legislative
sponsors have been described by the Supreme Court as an “authoritative guide to the
statute’s construction.” North Haven Bd. Of Education v. Bell, 456 U.S. 512, 526-
27 (1982)(citing a bill summary placed in the Congressional Record by the bill’s
sponsor after passage, and explanatory remarks made two years later by the same
sponsor); Pacific Gas & Electric Co. v. Energy Resources Conservation and
Development Commission, 461 U.S. 190, 211 n. 23 (1983)(relying on a 1965
explanation by “an important figure in the drafting of the 1957 [Atomic Energy
Act”]); Grove City College v. Bell, 465 U.S. 555, 567 (1984)(remarks of sponsors
deemed authoritative when they are consistent with the language of the legislation).
Finally it may be noted that analogous preclusion of judicial review provisions
in the original Paperwork Review Act of 1980, P.L. 96-511 and in the 1995 revision
of the Act, P.L. 104-13, have been uniformly construed by the courts to allow
enforcement of its public protection provision. Thus 44 U.S.C. 3504 (1994), which
authorized the Director of OMB to review and approve or disapprove information
collection requirements in agency rules, and to assign control numbers to such forms,
provided that “there shall be no judicial review of any kind of the Director’s decision
to approve or not to act upon a collection of information requirement contained in an
agency rule.” 44 U.S.C. 3504(h)(9). A similar provision appears in the 1995 revision
of the Paperwork Act at 44 U.S.C.A. 3507(d)(6)(West, 1998 Supp.). The 1980
legislation also contained a “public protection” provision which absolved a person
from any penalty for not complying with an information collection request if the form
did not display an OMB control number or failed to state that the request was not
subject to the Act. See 44 U.S.C. 3512 (1994). The public protection provision has
been the subject of numerous court actions, some finding Section 3512 applicable and
providing a complete defense to noncompliance, others finding it inapplicable. But
no court has ever raised a question with respect to preclusion of judicial review.36
34Id., at E 577 and S 3686.
35See DOJ memorandum, supra n. 30, at 10 n.14.
36Compare United States v. Smith, 866 F.2d 1092 (9th Cir. 1980)(failure of Forest Service
(continued...)

---

CRS-19
A reviewing court construing the language of the congressional review provision,
the structure of the legislation, and its legislative history, is therefore likely to hold
that a court is not precluded from preventing an agency from enforcing a covered
rule that was not reported to Congress in compliance with Section 801(a)(1)(A).
Conclusion
The structural and interpretive issues identified in this report appear to be the
major causative sources of the full rulemaking review provision’s limited use. While
there have been some instances of the law apparently influencing the implementation
of certain rules, the limited utilization of the formal disapproval process in the five
years since enactment has arguably reduced the threat of possible congressional
scrutiny and disapproval as a factor in agency rule development. Moreover, there is
evidence suggesting that a significant number of covered rules are not being submitted
for review at all. OMB was directed to prepare, by March 31, 1999, guidance for
executive agencies with respect to such critical issues as the scope of the definition
of the term rule, the consequence of failing to report a rule, the good cause
exemption, the 60-day delay requirement for major rules, the nature of reporting
requirements, among other matters. It failed to do so. The current Congress may
exercise its authority under the CRA since the White House appears amenable to
overturning rules inherited from the prior Administration. Any rule promulgated after
July 13, 2000 (59 session days prior to the end of the second session of the 106th
Congress) is subject to CRA scrutiny for 60 session or legislative days in the first
session of the 107th Congress as long as a disapproval resolution is introduced in the
House by April 30 or in the Senate by April 6. For the long run, however, the
structural and interpretative issues identified in this report appear to merit
congressional scrutiny and possible development of remedial legislation.
36(...continued)
requirement to file a plan of operations to have OMB control number precluded conviction for
failure to file) and Cameron v. IRS, 593 F.Supp. 1540, aff’d 773 F.2d 126 (6th Cir.
1984)(failure of IRS forms to have OMB control numbers did not violate section since it was
a collection of information during the investigation of a specific individual or entity which is
exempt under the provision).

---