Refresher on The Congressional Review Act and Regulatory Actions Occurring Within Congress’ “Look-Back” Period
With less than a month away from Election Day, the possibility of a new Presidential Administration and a change in the Congressional majority presents an opportunity to refresh our understanding of the Congressional Review Act (“CRA”) and its procedural rules for expedited review of agency rulemaking. Enacted in 1996, the CRA serves as a tool in which Congress can overturn “major” agency rules published in the Federal Register or submitted to Congress in the last 60 legislative or session days of a prior session of Congress. The CRA defines a “major rule” as one that has resulted in or is likely to result in:
(1) an annual effect on the economy of $100,000,000 or more;
(2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
5 U.S.C. § 804(2).
Under the CRA, beginning on the 15th session day, a new succeeding Congress will have 60 session days to take action on a joint resolution disapproving an agency’s promulgation of a major rule. 5 U.S.C. §802(e)(2). If both the House and Senate pass the joint resolution, it is sent to the President for signature or veto. Similar to other Presidential vetoes, Congress can override the President’s veto with a two-thirds majority of both houses of Congress.
Enactment of a joint disapproval resolution applies to an entire agency rule and will immediately take a rule out of effect or prevent it from going into effect. This is to say, Congress cannot disapprove a specific aspect of a major rule. Moreover, an enacted joint disapproval resolution prohibits an agency from issuing a rule that is “substantially the same” without further authorization from Congress. 5 U.S.C. §801(b)(2).
This year’s Congressional calendar presents unique procedural considerations for determining when the CRA’s 60-day lookback period begins. Four years ago, regulations finalized on or after June 13, 2016 were subject to Congressional expedited review under the CRA. This year, in response to the COVID-19 pandemic this year, the date has been a moving target as both the House and Senate have cancelled and added several days of planned legislative sessions. In addition, there may still be more calendar changes that will affect the specific date on which the 60-day window begins, such that, regulations issued by the Trump Administration and submitted to Congress on or after that date through the end of the year could be subject to expedited CRA review by a new Congress.
With this in mind, HMBR has identified the following regulations published in the Federal Register by the U.S. Department of Education that may be subject to the CRA expedited review by a new succeeding Congress:
- Distance Education and Innovation, 85 Fed. Reg. 171, 54742 (Sept. 2, 2020), available here.
- CARES Act Programs; Equitable Services to Students and Teachers in Non-Public Schools, 85 Fed. Reg. 127, 39479 (July 1, 2020), available here.
And, if the 60-day date were to go back as far as May, it will be important to keep in mind that the Department published the final Title IX regulations in the Federal Register on May 19, 2020.
Should you like assistance or have any questions on the content of this blog post, please contact HMBR’s Higher Education Group at 312-946-1800.