Order Code RL30116
Report for Congress
Received through the CRS Web
Congressional Review of Agency Rulemaking: An
Update and Assessment After Nullification of
OSHA’s Ergonomics Standard
Updated January 6, 2003
Morton Rosenberg
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress

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Congressional Review of Agency Rulemaking: An
Update and Assessment After Nullification of OSHA’s
Ergonomics Standard
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, by means of an expedited legislative process,
virtually all federal agency rules. In its current form, however, the efficacy of the
review scheme as a vehicle to control agency rulemaking through the exercise of
legislative oversight may appear to some observers to be problematic despite the
nullification of OSHA’s controversial ergonomics standards in March 2001. In
retrospect, it appears that that action was the result of a unique confluence of
circumstances not likely to soon recur: the White House and both Houses of
Congress in the hands of the same political party, a contentious rule promulgated in
the waning days of an outgoing administration; longstanding opposition to the rule
in Congress and by a broad coalition of business interests; and encouragement of
repeal by the President. 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 use, the scheme provides no
expedited consideration procedure in the House of Representatives; there is no
screening mechanism to identify rules that may require special congressional
attention; and a disapproval resolution of a significant or politically sensitive rule is
likely to need a supermajority to be successful if control of the White House and the
Congress are in different political hands, as was the case between April 1996 and
January 2001. Moreover, a number of critical interpretive issues remain to be
resolved, including the scope of the provisions’ coverage of rules; whether an agency
failure to report a covered rule is subject to court review and sanction; whether a joint
resolution of disapproval may be utilized to veto parts of a rule or only may be
directed at the rule in its entirety; and what is the scope of the limitation that
precludes an agency from promulgating a “substantially similar” rule after
disapproval of a rule. Some might argue that these potential impediments and
uncertainties have contributed to the fact that of a total of 19 joint resolutions of
disapproval that have been introduced to date since April 1996, only one has
succeeded in passing and that one may have been sui generis because of the
circumstances described above. During that period over 28,400 major and non-major
rules have been reported and become effective.
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.
This report will be updated as warranted.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Review of Agency Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Utilization of the Review Mechanism Since 1996 . . . . . . . . . . . . . . . . . . . . 6
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. Lack of a Screening Mechanism to Pinpoint Rules
That Need Congressional Review . . . . . . . . . . . . . . . . . . . . . . . . 10
2. Lack of an Expedited House Procedure . . . . . . . . . . . . . . . . . . . . . 12
3. The Deterrent Effect of the Ultimate Need for a Supermajority
to Veto a Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. The Reluctance to Disapprove an Omnibus Rule Where Only
One Part of the Rule Raises Objection . . . . . . . . . . . . . . . . . . . . 13
5. The Uncertainty of Which Rules Are Covered By the CRA . . . . . 15
6. The Uncertainty of the Effect of An Agency’s Failure
to Report a Covered Rule to Congress . . . . . . . . . . . . . . . . . . . . . 17
7. The Uncertainty of the Breadth of the Prohibition Against
An Agency’s Promulgation of a “Substantially Similar” Rule
After the Original Rule Has Been Vetoed . . . . . . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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Congressional Review of Agency
Rulemaking: An Update and Assessment
After Nullification of OSHA’s Ergonomics
Standard
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, by means of an expedited legislative process,
virtually all federal agency rules. In its current form, however, the efficacy of the
review scheme as a vehicle to control agency rulemaking through the exercise of
legislative oversight may appear to some observers to be problematic despite the
nullification of OSHA’s controversial ergonomics standard in March 2001. In
retrospect, it appears that that action was the result of a unique confluence of
circumstances not likely to soon recur: the White House and both Houses of
Congress in the hands of the same political party, a contentious rule promulgated in
the waning days of an outgoing administration; longstanding opposition to the rule
in Congress and by a broad coalition of business interests; and encouragement of
repeal by the President. 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 remain to be
resolved, including the scope of the provisions’ coverage of rules; whether an agency
failure to report a covered rule is subject to court review and sanction; whether a joint
resolution of disapproval may be utilized to veto parts of a rule or only may be
directed at the rule in its entirety; and what is the scope of the limitation that
precludes an agency from promulgating a “substantially similar” rule after
disapproval of a rule. Some might argue that these potential impediments and
uncertainties have contributed to the fact that of a total of 19 joint resolutions of
disapproval that have been introduced to date since April 1996, only one has
succeeded in passing and that one may have been sui generis for the reasons
described above. During that period over 28,400 major and non-major rules have
been reported and become effective.

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CRS-2
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, and
popularly known as the Congressional Review Act (CRA), 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 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 prices for
1 Section 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.”
2 Attorney General’s Manual on the Administrative Procedure Act 13 (1948).
3 Avoyelles Sportmsmen’s League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983).

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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
801(a)(2)(A). 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 to examine the substance of the actions.
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)5 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 rule 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
4 See, e.g., Chem Service, Inc. v. EPA, 12 F.3d 1256 (3d Cir. 1993)(memorandum of
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)).
5 The General Counsel of GAO has ruled that the 60-day period does not begin to run until
both Houses of Congress receive the required report. See B-289880, April 5, 2002, opinion
letter to Hon. Edward M. Kennedy, Chairman, Senate Committee on Health, Education,
Labor and Pensions from Anthony H. Gamboa, General Counsel. The situation involved
a Department of Health and Human Service’s (HHS) major rule published in the Federal
Register on January 18, 2002 with an announced effective date of March 29, 2002. The
House of Representatives, however, did not receive the rule until February 14, 2002. HHS
thereafter delayed the effective date of the rule until April 15, 2002, in an attempt to comply
with the CRA. But the Senate did not receive the rule until March 15, 2002. The General
Counsel determined that the rule could not become effective until May 14, 2002, 60 days
following the Senate’s receipt.

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impracticable, unnecessary, or contrary to the public interest.”6 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
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).
6 Reviewing 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.

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Section 802(a) spells out the process for an up or down vote on a joint resolution
of disapproval.7 A joint resolution of disapproval must be introduced within 60
calendar days (excluding days either House of 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
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).8
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
7 For an in-depth discussion of procedural issues that may arise during House and Senate
consideration of disapproval resolutions, see Richard S. Beth, CRS Report RL31160,
Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act,
October10, 2001 (CRA Procedure).
8 There 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
Parliamentarian, 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).

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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 January 2, 2003, the Comptroller General had submitted reports pursuant
to section 801(a)(2)(A) to Congress on 428 major rules.9 In addition, GAO had
cataloged the submission of 28,013 non-major rules as required by Section 801 (a)
(1) (A). To date, 19 joint resolutions of disapproval have been introduced relating
to 14 rules.10 One rule, OSHA’s ergonomics standard in March 2001, has been
disapproved, an action that may prove to be unique to the circumstances of its
passage.
OSHA’s ergonomics standard had been controversial since the publication of
its initial proposal for rulemaking in 1992 during the Bush Administration.11 OSHA
9 General Accounting Office, Reports on Federal Agency Major Rules, which may be found
at http://www.gao.gov/decisions/majrule/majrule.htm
10 Identical joint resolutions were introduced in both Houses with respect to four rules. The
disapproval resolutions introduced include: S.J. Res. 60, 104th Cong., 2d Sess. (1996)
(HCFA rule relating to hospital reimbursement under the Medicare program); H.J. Res. 59,
105th Cong., 1st Sess. (1997) (Department of Interior rule relating to polar bear trophies from
Canada); H.J. Res. 67, 105th Cong. 1st Sess. (1997) (Occupational Health and Safety
Administration rule relating to occupational exposure to methylene chloride); S.J. Res. 25,
105th Cong., 1st Sess. (1997) (same); H.J. Res. 81, 105th Cong., 1st Sess. (1997) (FCC rule
relating to agency’s revision of its cable-tv leased commercial access rules); S.J. Res. 50,
105th Cong., 2d Sess. (1998) (HCFA rule relating to surety bond requirements for home
health agencies); H.J. Res. 123, 105th Cong., 2d Sess. (1998 (same); H.J. Res. 55, 106th
Cong, 1st Sess. (1999) (Postal Service rule relating to delivery of mail to a commercial mail
receiving agency); S.J. Res. 6, 107th Cong. 1st Sess. (2001) (OSHA rule relating to
ergonomics); H.J. Res. 35, 107th Cong., 1st Sess (2001)(same); H.J. Res 38, 107th Cong., 1st
Sess. (2001)(Department of Health and Human Services rule relating to standards for
privacy of industrial health information); S.J. Res. 9, 107th Cong., 1st Sess. (2001) (United
States Agency for International Development rule relating to the restoration of the Mexico
City Policy); H.J. Res. 44, 107th Cong., 1st Sess. (2001) (Department of Energy rule with
respect to clothes washers); S.J. Res. 14, 107th Cong., 1st Sess. (2001) (Environmental
Protection Agency rule relating to the delay in the effective date of a new arsenic standard)
S.J. Res. 15, 107th Cong, 1st Sess. (2001) (Department of Energy rule relating to the
postponement of the effective date of energy conservation standards for central air
conditioners); H.J. Res. 43, 107th Cong., 1st Sess. (2001)(same); S.J. Res. 37, 107th Cong.,
2d Sess. (2002)(Department of HHS Centers of Medicare and Medicaid Services rule
relating to the modification of the Medicaid upper limit payment for non-state government-
owned or operated hospitals); H.J. Res 92, 107th Cong., 2d Sess. (2002)(same). S.J.Res 48,
107th Cong. 2d Sess, (2002) (Federal Election Commission rule relating to prohibited and
excessive campaign contributions).
11 The history of the turbulent development of the ergonomics standard is recounted in CRS
(continued...)

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circulated a draft proposal in 1994 which was met with strong opposition from
business interests and the formation of an umbrella organization, the National
Coalition on Ergonomics, to oppose its adoption. In 1995 OSHA circulated a
modified draft proposal, particularly with respect to coverage and regulatory
requirements. At the same time, congressional opposition resulted in appropriations
riders that prohibited OSHA from promulgating proposed or final ergonomics
proposals during the fiscal years 1995, 1996, and 1998.12 The riders did not prohibit
OSHA from continuing its development work, however, which included responding
to concerns that scientific knowledge of ergonomics was inadequate for rulemaking
and that the cost of industry implementation of a broad standard would be
extraordinarily costly. Congress mandated reports from the National Academy of
Sciences which found a significant statistical link between workplace exposures and
musculoskeletal disorders, but also noted that the exact causative factors and
mechanisms are not understood. In 2000, congressional attempts to pass another
appropriation rider, as well as stand alone prohibitory legislation, failed, and on
November 14, 2000, OSHA issued its final standard which became effective on
January 16, 2001.13 Most employer responsibilities under the new standard, however,
were not to begin until October, 2001.
As soon as the rule was issued two industry groups filed suit in the Court of
Appeal for the District of Columbia Circuit challenging OSHA’s authority to issue
the rule, its failure to follow proper procedures, the rationality of its provisions, and
the adequacy of its scientific and economics analyses. The intervening 2000
elections also altered the political situation with the election of a president and
effective control of both Houses of Congress in the same political party. Opponents
of the standard introduced a resolution of disapproval under the CRA, S.J. Res. 16,
on March 1, 2001. A discharge petition was filed on March 5, and debate on and
passage of the resolution occurred on March 6 by a vote of 56-44. That evening the
House Rules Committee issued a rule for floor action the next day, and after an hour
of debate H.J. Res. 35 was passed on March 7 by a vote of 223-206. The President
signed the nullifying measure into law on March 20, 2002.14 In late March 2000
Senator Jeffords announced he was changing his party affiliation and in June 2000
the Democrats took control of the Senate.
In sum, the veto of the ergonomics standards may be seen as the product of an
unusual, and possibly irreplicable, confluence of factors and events: control of both
Houses of Congress and the presidency by the same party, the longstanding
opposition by these political actors, as well as by broad components of the industry
to be regulated, to the ergonomics standards, and the willingness and encouragement
of a president seeking to undo a contentious, end-of-term rule from a previous
administration.
11 (...continued)
Report 97-724, Ergonomics in the Workplace: Is It Time for an OSHA Standard?
12 In a close floor vote, the rider proposed for FY 1997 was deleted.
13 65 Fed. Reg. 68261 (2000).
14 Pub. L. 107-5.

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In all other cases, if there is 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 Education appropriations measure15
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.16
The disapproval resolution mechanism was effectively utilized to accomplish
the suspension of a highly controversial rulemaking by the then-Health Care
Financing Administration (HCFA). In January 1998, HCFA issued a rule requiring
that home health agencies (HHAs) 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 was 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, Baucus and Grassley.17 The GAO report was issued on January
15 Pub.L. 105-78.
16 See Allan Freedman, “GOP’s Secret Weapon Against Regulations: Finesse,” CQ Weekly,
September 5, 1998, at 2318-19 (Freedman).
17 Freedman, supra note 16, at 2319-20.

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29, 1999, but as yet the rule remains suspended. No floor vote on the disapproval
resolutions occurred in either House.
Another 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.”18 The HCFA rule went into effect on October 1 as scheduled.
A final interesting utilization of the CRA process that had an impact and
resulted in an unusual outcome, involved President Bush’s restoration, on February
15, 2001, of President Reagan’s so-called Mexico City Policy, which limited the use
of federal and non-federal monies by non-governmental organizations (NGOs) to
directly fund foreign population planning programs which support abortion or
abortion-related activities. President Clinton had rescinded the 1984 Reagan policy
when he took office in January 1993.19 A president’s authority to determine the
terms and conditions on which such NGOs may engage in foreign population
planning programs derives from the Foreign Assistance Act of 1961.20 The provision
vests the authority to make these determinations exclusively in the Chief Executive.
President Reagan delegated his authority to make the determinations to the
Administrator of the U.S. Agency for International Development (AID), who issued
regulations that specified the conditions upon which grants would be given to NGOs.
Thus, when the Mexico City Policy was rescinded in 1993, it was the AID
Administrator that did it, at the direction of President Clinton. When President Bush
restored it in 2001, he did it in a directive to the AID Administrator21 who simply
revived the old conditions by internal agency administrative action.
A number of Senate opponents of the policy filed a disapproval resolution on
March 20, 2001, S.J.Res. 9, to nullify the Administrator’s action, reasoning that it
was a covered rule under the CRA since the implementing action was taken by an
executive agency official and not by the President himself, and thus was reviewable
by Congress.22 The President responded by rescinding his earlier directive to the AID
18 See 142 Cong. Rec. S 10723 (daily ed. Sept. 17, 1996).
19 29 Weekly Comp. Pres. Doc. 88 (1993).
20 22 U.S.C. 2151b(b) and b(f)(1) (2000).
21 37 Weekly Comp. Pres. Doc. 216 (2001).
22 Compare Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Specter, 511
U.S. 462, 469 (1994), holding that the President is not subject to APA procedures since he
(continued...)

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Administrator and thereafter issuing an executive directive under his statutory
authority personally implementing the necessary conditions and limitations for NGO
grants.23 The presidential action mooted the disapproval resolution,
Discussion
In 6 years, the CRA process has been used sparingly. Several salient issues have
emerged in that period, including the scope of the law’s coverage; the judicial
enforceability of its key requirements, whether a disapproval resolution may be
directed at part of a rule, and the effect of a rule nullification on future agency
rulemaking in the same area, have introduced uncertainties and impediments to
confident use of the process.
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 serve as check lists as to whether legally required agency tasks have
been done and not as 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.
The need for an independent substantive screening body was signaled by the
introduction by Rep. Sue Kelly of H.R. 1704 in the 105th Congress, a bill that would
have established a Congressional Office of Regulatory Analysis.24 The bill was
referred to the House Judiciary and Governmental Reform and Oversight
Committees both of which favorably reported differing versions of the legislation.25
Both versions would have established 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
22 (...continued)
is not expressly covered by its definition of agency, with Chamber of Commerce v. Reich,
74 F.3d 1311 (D.C. Cir. 1998) and National Family Planning Council v. Sullivan, 979 F.2d
227 (D.C. Cir. 1992), allowing challenges to agency rules that were issued pursuant to
presidential directive.
23 See, Restoration of the Mexico City Policy: Memorandum for the Administrator of the
U.S. Agency for International Development, March 28, 2001, 66 Fed. Reg. 17303-17313
(March 29, 2001).
24 A companion bill, S. 1675, was introduced in the Senate by Senators Shelby and Bond.
143 Cong. Rec. S1007 (daily ed. Feb. 25, 1998).
25 See H.Rept. 105-441, Parts 1 and 2 (105th Cong., 2d Sess.) (1998).

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Comptroller General under the CRA and the Congressional Budget Office under the
Unfunded Mandates Act of 1995 would be transferred to the proposed 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
CRA, directs the proposed CORA to “conduct its own regulatory impact of these
‘major rules.’”26 The bill as reported by the Government Reform Committee would
have allowed 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 provided that a similar analysis of non-major rules was 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 was given to all major
rules. Secondary priority was assigned to committee requests. Tertiary priority was
given individual member requests. Finally, under the Judiciary Committee version,
the report was to be furnished within 45 days after Congress receives notification of
the rule; the Governmental Reform bill would have allowed 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 a CORA do its own cost-benefit analysis
from scratch could be pointed to as an unknown 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 Regulating Act of 2000.27 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 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 with respect to 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 to date Congress has not enacted an appropriation, thereby
forestalling implementation of the project. It may be noted that the 180-day reporting
period does not mesh exactly with the time period under the CRA for consideration
26 Section 4 (a)(3)(A).
27 Pub.L. 106-312, 114 Stat. 1248-50, 5 U.S.C. 801 note.

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of rules subject to resolution of disapproval, although completed requests for
analyses of proposed rules might coincide with such reviews. The pilot program
established by the Act 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.28 Also, a perception
that no action will be taken in the House might deter Senate action.
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 the ready 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 the rule
development process.29 The validity of this assumption may be seen to have been
borne out in the aftermath of the ergonomics standard veto. Since that action, seven
resolutions of disapproval with respect to six rules have been introduced, none of
which have been acted upon, an apparent return to the prior practice of using the
mechanism to facilitate bargaining.
Thus, even with the successful disapproval of the ergonomics standard, the
supermajority hurdle still remains. One possible solution is to establish a multi-tiered
28 The experience with respect to the repeal of the ergonomics standard, discussed supra at
6-7, would appear to bear this out.
29 See, Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency
Rules, 51 Duke L.J. 1059, 1089 (2001) (“The paucity of motions for disapproval resolutions
indicates that agencies are not apt to focus on fast-track review as a check on their
rulemaking discretion at least until late in the rulemaking process. Agencies might be likely
to focus on such review when they adopt rules that they know will be unpopular in
Congress, but even then they need not fear the ramifications of fast-track review unless they
also believe that the president opposes the rule or is willing to compromise it to win other
political battles. Fast-track review may have greater significance for midnight rules that are
subject to review when a different president is in office.”)(Seidenfeld).

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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 rule would not become effective unless a joint
resolution approving it passed both Houses within a specified period of time.30 To
make such a scheme effective someone or some body, other than the OIRA
Administrator or a congressional agency, such as the proposed CORA, might be
vested with the authority to designate which rules are “major” or “significant” and
thereby subject to the affirmative approval requirement. A 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. Another option would be to subject all covered rules to congressional
approval and establish an expedited procedure whereby non-controversial rules may
be sped through leaving only a few for close consideration.31
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 experience of 17 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.32
Similarly, the text of the review provision refers to “such rule,” “a rule,” or “the
rule,” with no language a expressly referring 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:
30 See 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 is deemed disapproved.
5 U.S.C. 906 (a) (1994).
31 Two 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).
32 S.J.Res. 50 and H.J.Res. 123, “relating to surety bond requirements for home health
agencies under the medicare and medicaid programs....”

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. . .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 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.33 (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
rejection of part of a rule would have a draconian result.
In fact, an up or down vote on the entire rule 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,34 international
trade agreements,35 and presidential reorganization plans,36 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
33 Joint 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)(emphasis added).
34 Defense 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).
35 See, 19 U.S.C. 2191-2193 (1994).
36 See, e.g., Reorganization Act of 1984, 5 U.S.C. 909-912 (1994).

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submitted rules as a whole and not to 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.
As a practical matter, if this reading is correct it may be a factor in the limited
use of the mechanism. As indicated, nullifying 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 nullification 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 the CRA.
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,37 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 CRA 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.”38 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,39 and noted that it was the intent of the legislation
to subject just such documents to congressional scrutiny:
37 See footnotes 1-4, supra, and accompanying text.
38 Legislative History, supra n. 33, at E 579, S 3687.
39 This 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).

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. . . The committees are concerned that some agencies have attempted to
circumvent notice-and-comment requirements by 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 8.40
It is likely that virtually all the 28,014 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.41 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 Members 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.42
40 Legislative History, supra n. 33, at E 578, S 3687.
41 An 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, and 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).
42 See letter to Honorable Doug Ose, Chairman, House Subcommittee on Energy Policy,
Natural Resources, and Regulatory Affairs, Committee on Government Reform, B-287557
(May 14, 2001)(Department of Interior’s Fish and Wildlife Service’s Trinity River “Record
of Decision” is a rule covered by the CRA because it is an agency statement of general
applicability and future effect designed to implement, interpret, or prescribe law or policy
and is an “agency action[] that substantially affect[s] the rights and obligations of outside
parties.”); 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 CRA); letter to Honorable David M. McIntosh, Chairman, 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 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 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
(continued...)

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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 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 guidance prompted insertion of the
following directive in the 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).”43 OMB, in the view of the
Subcommittee, has failed to substantially comply with that statutory directive.44
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 considered 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 CRA 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
42 (...continued)
Secretary of Agriculture concerning the Emergency Salvage Timber Sale Program held to
be a covered rule because it is of general applicability and interprets and implements the
statutory program.). The GAO opinion on the American Heritage River Initiative rests its
rationale that a presidential directive to an agency that results in substantive action by that
agency is not thereby covered by the CRA on the Supreme Court’s rulings in Franklin v.
Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Spector, 511 U.S. 462, 469 (1994).
In light of Chamber of Commerce v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996) and National
Family Planning v. Sullivan, 979 F. 2d 227 (1992), which successfully challenged
substantive changes in rules that were directed by a presidential directive, the GAO General
Counsel’s conclusions may be problematic.
43 P.L. 105-277, Division A, title III.
44 See H.Rept. 106-1009, supra n. 41 at 4-5.

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report a covered rule.45 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 considered clarifying the judicial enforceability of a failure to report
might forestall unnecessary litigation.
The plain, overarching purpose of the review provision of the CRA 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.46 The 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
45 See 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).
46 “This legislation establishes a government-wide congressional review mechanism for most
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 33, at E
575 and S 3683.

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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 to judicial scrutiny, its own internal procedures, the
validity of Presidential determinations that rules should become effective
immediately for specified reasons, 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 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.47 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 (Representative
Hyde) 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.”48
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 the
CRA and its legislative history. Senator Nickles explained:
47 The disapproval of the ergonomics rule underlines a possible need for judicial review in
certain instances where enforcement is necessary and appropriate to support the statutory
scheme. That rule, which was broad and encompassing in its regulatory scope, raises the
question as to how far can the agency go before it reaches the point of substantial similarity
in its promulgation of a substitute. This issue is addressed in the next section.
48 143 Cong. Rec. H3005 (daily ed. March 28, 1996).

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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 . . . 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.49
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 Office 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 each house 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, 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,
49 Legislative History, supra note 33, at 143 Cong. Rec. S 3683.

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CRS-21
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).50
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.51 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 Reduction 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 Reduction Act.52 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.53 The public protection provision, Section 3512, has been the subject of
numerous court actions, some finding it 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.54
50 Id., at E 577 and S 3686.
51 See DOJ memorandum, supra n. 45, at 10 n.14.
52 44 U.S.C. 3507(d)(6)(2000).
53 See 44 U.S.C. 3512 (1994).
54 Compare United States v. Smith, 866 F.2d 1092 (9th Cir. 1980)(failure of Forest Service
to file a plan of operations with 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
(continued...)

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CRS-22
A reviewing court construing the language of the congressional review
provision, the structure of the legislation, and its legislative history, including post-
enactment statements, 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).
7. The Uncertainty of the Breadth of the Prohibition Against An
Agency’s Promulgation of a “Substantially Similar” Rule After the
Original Rule Has Been Vetoed.
Enactment into law of a disapproval resolution has several important
consequences. First, a disapproved rule is deemed not to have had any effect at any
time. Thus, even a rule that has become effective for any period of time is
retroactively negated.55 Second, a rule that does not take effect, or is not continued
because of the passage of a disapproval resolution, cannot be “reissued in the same
form” nor can a “new rule” that is “substantially the same” as the disapproved rule
be issued unless such action is specifically authorized by a law enacted subsequent
to the disapproval of the original rule.56 The full text of this provision states:
(2) A rule that does not take effect (or does not
continue) under paragraph (1) may not be reissued in
substantially the same form, and a new rule that is
substantially the same as such a rule may not be
issued, unless the reissued or new rule is specifically
authorized by a law enacted after the date of the joint
resolution disapproving the original rule.
Finally, 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
disapproval resolution.57
It can be anticipated that opponents of a disapproval resolution will argue that
successful passage of a resolution may disable an agency from ever promulgating
rules in the “area” covered by the resolution without future legislative reauthorization
since a successful disapproval resolution must necessarily bring down the entire rule.
Or, at the very least, it may be contended that any future attempt by the agency to
promulgate new rules with respect to the subject matter will be subject to judicial
challenge by regulated persons who may claim that either the new rules are
substantially the same as those disapproved or that the statute provides no meaningful
54 (...continued)
information during the investigation of a specific individual or entity which is exempt under
the provision).
55 5 U.S.C. 801(f).
56 5 U.S.C. 801(b)(2).
57 5 U.S.C. 803.

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CRS-23
standard to discern whether a new rule is substantially the same and that the agency
must await congressional guidance in the form of a statute before it can engage in
further rulemaking in the area. The practical effect of these arguments, then, may be
to dissuade an agency from taking any action until Congress provides clear
authorization.
A review of the CRA’s statutory scheme and structure, the contemporaneous
congressional explanation of the legislative intent with respect to the provisions in
question, the lessons learned from the experience of the March 2001 disapproval of
the OSHA ergonomics rule, and the application of pertinent case law and statutory
construction principles suggests that: (1) It is doubtful that Congress intended that all
disapproved rules would require statutory reauthorization before further agency
action could take place. For example, it appears that Congress anticipated further
rulemaking, without new authorization, where the statute in question established a
deadline for promulgating implementing rules in a particular area. In such instances,
the CRA extends the deadline for promulgation for one year from the date of
disapproval. (2) A close reading of the statute, together with its contemporaneous
congressional explication, arguably provides workable standards for agencies to
reform disapproved regulations that are likely to be taken into account by reviewing
courts. Those standards would require a reviewing court to assess both the nature of
the rulemaking authority vested in the agency that promulgated the disapproved rule
and the specificity with which the Congress identified the objectionable portions of
a rule during the floor debates on disapproval. An important factor in a judicial
assessment may be the CRA’s recognition of the continued efficacy of statutory
deadlines for promulgating specified rules by extending such deadlines for one year
after disapproval. (3) The novelty of the issue, the uncertainty of the weight a court
will accord the post enactment congressional explanation, and the current judicial
inclination to give deference to the “plain meaning” of legislative language, make it
difficult to reliably anticipate what a court is likely to hold.
A blanket contention that enactment of a joint resolution disapproving an
agency’s rules would disable that agency from promulgating future rules in the “area”
of concern until Congress passes new legislation authorizing it to issue rules on that
subject would not appear to have a substantial basis in the CRA. Such argumentation
would apparently be based on the notion that the “plain meaning” of the CRA’s
disapproval mechanism forecloses further rulemaking with respect to that subject
matter unless Congress specifically reauthorizes such action in subsequent
legislation. That is, since Congress can apparently only disapprove a rule as a whole,
rather than pinpointing any particular portions, there is no sound basis for the agency
to act without further legislative guidance where a rule deals exclusively with an
integrated subject matter. The statute gives no indication as to how an agency is to
discern what actions would be “substantially the same” and it would run the risk of
a successful court challenge if it guessed wrong. It might be further argued that even
if the agency promulgates new rules, which of course would be subject to CRA
scrutiny, and Congress did not act to disapprove the new rules, that would not
provide the necessary reauthorization since Section 801(g) of the Act provides as a
rule of construction that in the event of the failure of Congress to disapprove a rule
“no court ... may infer any intent of Congress from any action or inaction of the
Congress with regard to such, related statute, or joint resolution of disapproval.”

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CRS-24
It is, of course, fundamental that statutory language is the starting point in any
case of statutory construction. In recent years, the Supreme Court has shown a strong
disposition to hold Congress to the letter of the language it uses in its enactments.
In its ruling in Barnhart v. Sigmon Coal Co.58 the Court advised that the first step “is
to determine whether the language at issue has a plain and unambiguous meaning
with regard to the particular dispute in the case.”59 “The inquiry ceases ‘if the
statutory language is unambiguous and the statutory scheme is coherent and
consistent.’”60 In such cases, the Court has held, resort to “legislative history is
irrelevant to the interpretation of an unambiguous statute.”61 In Barnhardt the Court
warned, “parties should not seek to amend [a] statute by appeal to the Judicial
Branch.”62
The plain meaning rule, however, is not an unalterable, rigid rule of construction
and has been held inapplicable where it would “lead to an absurd result,”63 or “would
bring about an end completely at variance with the purpose of the statute.”64 “It is
‘a fundamental canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in the overall statutory scheme’
... Thus it is a more faithful construction of [a statute] to read it as a whole, rather
than as containing two unrelated parts. It is the classic judicial task of construing
related statutory provisions to make sense in combination.”65 In the instant situation,
it is arguably not likely that a court would hold that the “substantially the same”
language of Section 801(b)(2) is unambiguous, either on its face or in the context of
the statutory scheme. The direction of the provision is not a self-enforcing mandate;
it clearly requires a further determination whether rules have been reissued in
“substantially the same form” or whether a new rule is “substantially the same” as the
one disapproved. The ambiguity raised is who makes those determinations and on
what basis.
The language of the provision, however, does not naturally or ineluctably lead
to the conclusion that no further remedial rulemaking can take place unless Congress
passes a new law. This reasoning is buttressed by Section 803(a) which contemplates
that agency rulemaking must take place after a disapproval action if the authorizing
legislation of the agency mandates that rules disapproved had to have been
promulgated by a date certain. That provision extends the deadline for promulgation
58 122 S.Ct. 941 (2002).
59 Id. at 950.
60 Id.
61 Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 808-09 n.3. Accord Connecticut
National Bank v. Germain, 503 U.S. 249, 253-54 (1992); United States v.Daas, 198 F.2d
1167, 1175 (9th Cir. 1999), cert. denied 531 U.S. 999 (2000).
62 122 S.Ct. at 956.
63 Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).
64 United Steelworkers v. Weber, 443 U.S. 193, 201 (1978).
65 United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) (holding, inter alia, that it is
appropriate for a court to look at the history and background against which Congress was
legislating).

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CRS-25
for one year “after the date of enactment of the joint resolution,” not one year after
Congress reauthorizes action in the area. The reasonable conclusion is that Congress
understood that after disapproval, an agency, if it was under a mandate to produce a
particular rule, had to try again. The question then is, how was it to perform this task.
The answer lies in the legislative history of the Act.
The Congressional Review Act was part of Title II of the Small Business
Regulatory Enforcement Fairness Act of 1996. That Title was a product of
negotiation between the Senate and House and did not go through the committee
process. Thus there is no detailed expression of its legislative history, apart from
floor statements by key House and Senate sponsors, before its passage by the
Congress on March 28, 1996 and its signing into law by the President on March 29.
Thereafter, the principal sponsors of the legislation in the Senate (Senators Nickles,
Reid and Stevens) and House (Representative Hyde) submitted identical joint
explanatory statements for publication in the Congressional Record “intended to
provide guidance to the agencies, the courts, and other interested parties when
interpreting the act’s terms.”66 Although it is a post-enactment explanation of the
legislation, it is likely to be accorded some weight as a contemporaneous, detailed,
in-depth statement of purpose and intent by the principal sponsors of the law.67
The Joint Explanatory Statement directly addresses a number of issues that may
arise upon enactment of a disapproval resolution and attempts to provide guidance
for both Congress and agencies faced with repromulgation questions. At the outset,
the Statement notes that disapprovals may have differing impacts on promulgating
agencies depending on the nature and scope the rulemaking authority that was
utilized. For example, if an agency’s authorizing legislation did not mandate the
promulgation of the disapproved rule, and the legislation gives the agency broad
discretion, the authors deem it likely that it has the discretion whether or not to
promulgate a new rule. On the other hand, the Statement explains that “if an agency
is mandated to promulgate a particular rule and its discretion is narrowly
circumscribed, the enactment of a resolution of disapproval for that rule may work
to prohibit the reissuance of any rule.”68 By implication, a congressional mandate to
issue regulations that is not circumscribed would still be operative. But how would
the agency be guided in that circumstance? The Statement addresses that very
question: it is the obligation of Congress during the debate on the disapproval
resolution “to focus on the law that authorized the rule and make the congressional
intent clear regarding the agency’s options or lack thereof after the enactment of a
joint resolution of disapproval.”69 Thereafter, “the agency must give effect to the
resolution of disapproval.”70 The full statement on the issue is as follows:
66 Legislative History, supra, n. 33..
67 See e.g., North Haven Bd. of Education v. Bell, 456 U.S. 512, 530-31 (1982); Pacific Gas
& Electric Co. v. Energy Resources Conservation & Development Commission, 461 U.S.
190, 220 n.23 (1983); Grove City College v. Bell , 465 U.S. 555, 567 (1984).
68 Legislative History at S 3686.
69 Id.
70 Id.

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CRS-26
Effect of enactment of a joint resolution of
disapproval
Subsection 801(b)(1) provides that: “A rule shall not
take effect (or continue), if the Congress enacts a joint
resolution of disapproval, described under section
802, of the rule.” Subsection 801(b)(2) provides that
such a disapproval rule “may not be reissued in
substantially the same form, and a new rule that is
substantially the same as such a rule may not be
issued, unless the reissued or new rule is specifically
authorized by a law enacted after the date of the joint
resolution disapproving the original rule.” Subsection
801(b)(2) is necessary to prevent circumvention of a
resolution disapproval. Nevertheless, it may have a
different impact on the issuing agencies depending on
the nature of the underlying law that authorized the
rule.
If the law that authorized the disapproved rule
provides broad discretion to the issuing agency
regarding the substance of such rule, the agency may
exercise its broad discretion to issue a substantially
different rule. If the law that authorized the
disapproved rule did not mandate the promulgation of
any rule, the issuing agency may exercise its
discretion not to issue any new rule. Depending on
the law that authorized the rule, an issuing agency
may have both options. But if an agency is mandated
to promulgate a particular rule and its discretion in
issuing the rule is narrowly circumscribed, the
enactment of a resolution of disapproval for that rule
may work to prohibit the reissuance of any rule. The
authors intend the debate on any resolution of
disapproval to focus on the law that authorized the
rule and make the congressional intent clear regarding
the agency’s options or lack thereof after enactment of
a joint resolution of disapproval. It will be the
agency’s responsibility in the first instance when
promulgating the rule to determine the range of
discretion afforded under the original law and whether
the law authorizes the agency to issue a substantially
different rule. Then, the agency must give effect to
the resolution of disapproval.
The congressional experience with the disapproval of the OSHA ergonomics
standard provides a useful lesson.71 This rule became the first, and only, rule to be
disapproved thus far under the CRA. The principal sponsor of the resolution, Senator
71 See CRS Ergonomics Report, supra note 11.

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CRS-27
Jeffords, at the outset of the debate addressed the issue whether disapproval would
disable OSHA from promulgating a new rule. Senator Jeffords referred to the above-
discussed Joint Statement and noted that OSHA “has enormously broad regulatory
authority,” citing pertinent sections of the OSH Act providing expansive rulemaking
authority. The Senator concluded that “I am convinced that the CRA will not act as
an impediment to OSHA should the agency decide to engage in ergonomics
rulemaking.”72 What Senator Jeffords apparently understood was that while the
agency had broad authority to promulgate rules, there was no congressional mandate
to issue an ergonomics rule in the underlying law. As a consequence it was possible
that no further rulemaking would occur, as implied by a letter to Senator Jeffords
from Secretary Chao which indicated that a new rulemaking was only one of many
options available to the Department should the rule be disapproved.73 In fact, OSHA
made it clear on April 5, 2002, that no rulemaking was in the offing.74 On April 17,
2002, Senator Breaux and 26 co-sponsors, many of whom had voted in favor of the
disapproval resolution, introduced S. 2184, which would direct the Secretary of
Labor to promulgate a new ergonomics rule and specifies in detail what should be
included, what should not be included, and what evidence should be considered.
Section 1 (b)(4) of the bill deems the direction to issue the rule “a specific
authorization by Congress in accordance with Section 801 (b)(2)” of the CRA.75
An interesting contrast with the ergonomics situation is the consideration now
being given by the key Senate sponsors of the Bipartisan Campaign Reform Act 2002
(BCRA),76 which requires that the Federal Election Commission (FEC) promulgate
rules implementing the soft money limitations and prohibitions of Title I of the Act
no later than 90 days after its date of enactment,77 whether to introduce a CRA
disapproval resolution with respect to the rules issued by the FEC on July 17, 2002.78
The Senate sponsors believed that the new rules, which became effective on
November 6, 2002, undermine the BCRA’s ban on the raising and spending of soft
money by federal candidates and officeholders and on national party use of soft
money. Since the FEC is mandated to promulgate rules to implement the BCRA by
a date certain, it may be argued that, in contrast with the general discretion OSHA
has with respect to whether to issue any ergonomics standard, if Congress
disapproves the FEC’s soft money rule, the agency would be obligated to undertake
a new rulemaking (to be completed within a year after the disapproval resolution is
72 147 Cong. Rec. S 1832-33 (daily ed. March 6, 2001) (emphasis added).
73 147 Cong. Rec. at S 1832.
74 CRS Ergonomics Report, supra note 11.
75 Id.
76 Pub. L. 107-55, 116 Stat. 81 (March 27, 2002).
77 Section 402 (c)(2).
78 Kenneth P. Doyle, Wertheimer, Bauer Debate Move to Void Soft Money Rule Before
Senate Democrats, Bureau of National Affairs, July 19, 2002. A disapproval resolution of
the FEC rules was introduced in the Senate, S.J. Res. 48, on October 8, 2002. Since
Congress adjourned sine die before the expiration of the CRA’s 60 session day
consideration period, it may still receive consideration in the 108th Congress. See
discussion, supra at 4.

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CRS-28
signed into law) that would reflect congressional objections to the rule. At the same
time, in accordance with the understanding of the Joint Statement, it will arguably
be incumbent on Congress in its debates on any such resolution to clearly identify
those provisions of the rule that are objectionable as well as those that are not.
Whether this will be sufficient to withstand a challenge in the courts cannot be
answered with any degree of certainty. Foreseeable obstacles may be the novelty of
the issue, the amount of weight, if any, that a court will accord the post-enactment
congressional explanation of the CRA, and the current inclination of the courts to
give deference to the plain meaning of statutory language and to eschew legislative
history. A new rule may be challenged on grounds of lack of authority as a
consequence of the disapproval resolution either because Congress failed to articulate
its objections to the rule, thereby providing no standards for the agency to apply in
its rulemaking, or that the new rules were “substantially the same” as the old,
disapproved rules and therefore invalid under the CRA.
Since it appears that the FEC would be required to engage in new rulemaking
that must be completed within a year after disapproval, Congress, if it considers a
disapproval resolution, may desire to be mindful of the guidance provided by the
Joint Statement. The Joint Statement declares congressional intent to make clear and
specific identification of the options available to the agency, including identification
of objectionable provisions in the proposed rule during the floor debates. In this way
Congress provides an agency clear and direct guidance as to what it expects in the
repromulgation process as well as a possible defense to a challenge based on the
“substantially the same” language of the CRA.
Conclusion
This report identifies structural and interpretive issues affecting use of the CRA.
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 six and a half years since enactment has arguably reduced the threat of
possible congressional scrutiny and disapproval as a factor in agency rule
development. The one instance in which an agency rule was successfully negated is
likely a singular event not soon to be repeated. Presently, the Congress and the
White House are no longer in the hands of the same political party, the rules of the
previous administration are no longer subject to the CRA and the current
administration appears to be establishing firm control of the agency rulemaking
process through its administration of Executive Order 12,866.79 One commentator
has observed that if the perception of a rulemaking agency is that the possibility of
congressional review is remote “it will discount the likelihood of congressional
intervention because of the uncertainty about where Congress might stand on that
rule when it is promulgated years down the road,” an attitude that is reinforced “so
79 See, e.g., Stephen Power and Jacob M. Schlesinger, Redrawing the Lines: Bush’s Rule
Czar Brings Long Knife to New Regulations, Wall St. Journal, 6/12/02 at Al; Rebecca
Adams, Regulating the Rulemakers: John Graham at OIRA, CQ Weekly, 2/23/02 at 520-
526.

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CRS-29
long as [the agency] believes that the president will support its rule.”80 Indeed, there
is growing evidence that a significant number of covered rules are not being
submitted for review at all. Also, a potentially effective support mechanism, the in-
depth, individualized scrutiny of selected agency cost-benefit and risk assessment
analyses by GAO authorized under the Truth in Regulating Act of 2000, has not been
implemented for lack of appropriated funds.
The CRA reflects a recognition of the need to restore the political accountability
of Congress and the perception of legitimacy and competence of the administrative
rulemaking process. It also rests on the understanding that broad delegations of
rulemaking authority to agencies are necessary and appropriate, and will continue for
the indefinite future. The Supreme Court’s most recent rejection of an attempted
revival of the nondelegation doctrine81 adds impetus for Congress to consider several
facets and ambiguities of the current mechanism. Absent review, current trends of
avoidance of notice and comment rulemaking, lack of full reporting of covered rules
under the CRA, intrusive judicial review, and increasing presidential control over the
rulemaking process will likely continue.
80 Seidenfeld, supra note 29, at 1090.
81 Whitman v. American Trucking Assn’s, 531 U.S. 457 (2001).

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