New Congressional Review
Procedures of Agency Rules

by Daniel E. Troy

As part of the debt ceiling legislation adopted at the end of March, Congress has undertaken to review agency rules under designated "fast-track" procedures. From now on, before a new rule can become law, an agency must submit it to Congress and the Comptroller General, along with the proposed effective date. 5 U.S.C. Sec. 801(a)(1)(A). The agency must also supply a copy of the cost-benefit analysis of the rule, if any, a regulatory flexibility analysis, and an analysis under the Unfunded Mandates Reform Act of 1995. 5 U.S.C. Sec. 801(a)(1)(B).

The effective date for a major rule -- generally defined as a rule having an effect on the economy in excess of $100 million -- is stayed for sixty calendar days. The Comptroller General must provide to the relevant congressional committees a report about such major rules within the later of 15 calendar days after receiving the agency's report or after the rules have been published in the Federal Register. 5 U.S.C. Sec. 801(a)(2)(A).

Congress then has sixty calendar days (subject to extensions for periods when either House is out of session for more than three days) to introduce a joint resolution of disapproval. That resolution must take a particular form.

The effect of such a resolution is to give Congress 60 session days (in the Senate) or legislative days (in the House) in which to employ the fast-track procedures described below. Sixty session days can take anywhere between four and seven months. (To illustrate, on April 15, 1996, the Senate had logged only 38 session days, even though 103 calendar days had passed.) There is some ambiguity about the meaning of a "legislative day;" the concept of a "session day" is relatively well-defined, however. 1

The Fast-Track Procedures

The fast-track procedures that Congress may then use are designed to allow this resolution of disapproval to be considered by the Senate free of procedural roadblocks. Such a resolution is referred to the appropriate committees in each House. 5 U.S.C. Sec. 802(c). If it is not reported out of the Senate committee after 20 days, it can be discharged from committee by a petition signed by 30 senators. 5 U.S.C. Sec. 802(c). Once reported and discharged, the petition is in order and may not be amended or postponed. 5 U.S.C. Sec. 802(d)(1). Points of order are waived. Id. Debate is limited to ten hours, thus limiting filibusters. 5 U.S.C. Sec. 802(d)(2). A vote immediately follows the end of debate.

If one House has passed the joint resolution, the resolution may not be referred to a committee by the other House. Once there is a vote, there is no House-Senate conference. 5 U.S.C. Sec. 802(f). Rules that have been disapproved of by Congress and the President may not be proposed again. 5 U.S.C. Sec. 801(b).

Review by A Subsequent Congress

If a rule has been submitted to Congress less than 60 session days before it adjourns sine die, then the next Congress has an opportunity to review the rule as well. 5 U.S.C. Sec. 802(d)(1). For the purposes of the expedited congressional review procedures set forth in the statute, the clock starts again on the fifteenth session day after the previous Congress ended. 5 U.S.C. Sec. 802(d)(2). Congress would then have another sixty session days thereafter to employ the fast-track procedures. The deadline for use of those procedures by the second Congress is, therefore, seventy-five session days.

It is unclear whether this second review opportunity exists if the prior Congress has voted on a joint resolution of disapproval, but failed to pass such a resolution or could not override a presidential veto. The plain language suggests that the subsequent Congress has a second review opportunity no matter what. Sec. 801(d) (stating, without qualification, that the opportunity for review in the next Congress is "in addition to the opportunity to review otherwise provided under this chapter"). There would be no apparent purpose to this second review period, however, given that the first Congress under this scenario would already have been able to bring a resolution of disapproval to a vote.

Exceptions

There are at least two exceptions to the rule that a major rule does not go into effect until sixty calendar days after the rule has been published in the Federal Register (or Congress has received the report, whichever is later). First, the President may certify by Executive Order that a new rule should take effect immediately because, among other reasons, it is "necessary because of an imminent threat to health or safety or other emergency." 5 U.S.C. Sec. 801(c)(2). Although "imminent threat" is not defined in the statute, Congress's use of the phrase "other emergency" suggests that Congress had in mind a truly time-sensitive, emergency situation.

Second, the procedures retain the existing exception to notice and comment, which permits a rule to go into effect "at such time as the Federal agency promulgating the rule determines" if the agency "for good cause finds (and incorporates the finding and brief statement of the reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. Sec. 808.

In addition, if the agency sets a later effective date than sixty calendar days, then the agency's designation is controlling. None of these exceptions affect the period of congressional review.

Implications

There may be less to these procedures than meets the eye, given the President's ability to veto any resolution of disapproval passed by Congress. Moreover, increasing to sixty calendar days the period before which a major rule goes into effect does not substantially extend the current period. Also, while these procedures certainly create and even increase the possibility that a rule would go into effect and then be repealed, this potentiality exists today. Congress can always override or change an existing agency rule if it can secure the President's agreement or override his veto.

These procedures are likely to be of some effect, however. First, the Comptroller General, who only has fifteen calendar days during which to summarize the rule and report on it to Congress, takes on increased responsibility and power. Second, agencies may well be more likely to informally "clear" rules with Congress and the relevant congressional committees. Third, the uncertainty concerning whether rules will remain in effect will increase, but probably not dramatically. (There are an estimated 75-100 new major rules each year; Congress will be hard-pressed to act on more than a few of the most controversial ones.) Finally, these procedures will give Congress some accountability for the consequences of their broad delegations to independent agencies. That alone may justify the increased administrative burden that these new procedures will undoubtedly place on agencies.

Notes:

^{1 For convenience, I will refer in the rest of this article to session days; that term should be considered to encompass legislative days as well.}

Daniel E. Troy is a partner at Wiley, Rein & Fielding, specializing in complex appellate and constitutional litigation. He is Co-Chair of the Communications Committee; former co-chair of the Judicial Review Committee (1994-95); and, former co-chair of the Meetings Committee (1993-94).