January 26, 2010
Are Agency Final Rules Not Submitted to Congress for Possible Disapproval Under the Congressional Review Act Enforceable?
Signed into law in March of 1996, The Congressional Review Act, Title II of P.L. 104-121, was an attempt to reestablish a measure of congressional authority over rulemaking by establishing expedited procedures by which Congress may disapprove agencies’ final rules by enacting a joint resolution of disapproval. As a first step, the CRA generally requires federal agencies to submit final rules to Congress and GAO before they can take effect. In Congressional Review Act: Rules Not Submitted to GAO and Congress, the Congressional Research Service reports:
Between 1999 and 2009, GAO sent the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget at least five letters listing more than 1,000 substantive final rules that GAO said it had not received. In each of those letters, GAO encouraged OIRA to use the information to ensure that the agencies complied with the CRA. The most recent of these letters was sent to OIRA in May 2009, and listed 101 substantive rules that were published during FY2008 that GAO said had not been submitted. ... As of October 26, 2009, 99 of the 101 rules had still not been submitted to GAO and to both houses of Congress.
The CRS report discusses the CRA rule submission requirement, its legislative history and current legislation related to this issue including H.R. 2247, Congressional Review Act Improvement Act. H.R. 2247, would eliminate the requirement that federal agencies submit their rules to Congress before they can take effect. The rules would still have to be submitted to GAO, and GAO would be required to submit to each house of Congress a weekly report containing a list of the rules received.
About H.R. 2247, the Report states
Congress may conclude that enactment of this legislation will improve agencies’ ability and willingness to submit their covered rules, or that this is an administrative issue that should be resolved between GAO, OIRA, and the rulemaking agencies. Alternatively, Congress could require OIRA or GAO to take additional actions to ensure compliance with the CRA’s reporting requirements. Congress could also require GAO to provide a copy of its CRA compliance reports to Congress, publish the reports in the Federal Register, or both.
One question: has anyone made the argument that a final rule not submitted to Congress under CRA is not legally binding? [JH]
"Fourth, plaintiffs ask the Court to invalidate an unspecified number of previous Forest Service amendments to the Flathead Plan because the Service allegedly failed to satisfy the reporting requirement contained in the Small Business Regulatory Enforcement Fairness Act of 1996. That Act provides: 'Before a rule can take effect, the Federal agency promulgating such rule shall submit,' among other things, a copy of the rule 'to each House of the Congress and to the Comptroller General.' 5 U.S.C. § 801(a)(1)(A). The Act, however, also states that '[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.' Id. § 805. That latter provision denies courts the power to void rules on the basis of agency noncompliance with the Act. The language of § 805 is unequivocal and precludes review of this claim..."
Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009)
Posted by: sean | Feb 1, 2010 5:49:20 AM