House Set to Repeal Five Rules Under Congressional Review Act

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By Cheryl Bolen

The House is set to begin the process of repealing regulations issued by the Obama administration in the last half of 2016 using the Congressional Review Act and have picked five rules for disapproval next week.

The rules are:

  •  a Department of the Interior stream protection rule;
  •  a Securities and Exchange Commission rule requiring the reporting of payments made to governments for the commercial development of oil, natural gas or minerals;
  •  a rule implementing President Barack Obama’s executive order on fair pay and safe workplaces;
  •  a Social Security Administration rule requiring federal agencies to provide records for the National Instant Criminal Background Check system; and
  •  a Bureau of Land Management rule to reduce waste of natural gas during oil and natural gas production activities on tribal lands.
Only regulations issued since June 13, 2016, are eligible to be taken up under the fast-track process that was established in 1996, and has only been successfully used once, in March 2001, by former President George W. Bush.

Still, Pantelis Michalopoulos, a partner in the Washington office of Steptoe & Johnson, said he predicted 20 years ago that the CRA was too blunt an instrument to make a difference.

“This prediction has been borne out, and I think will continue to be borne out,” he told Bloomberg BNA.

Senate to Take Up House Proposals

The Senate the week of Jan. 30 will be concentrating on getting the president’s Cabinet in place, Senate Majority Leader Mitch McConnell (R-Ky.) said.

“We’ll also be taking Congressional Review Act proposals from the House and taking those up as well, as we begin to change America and go in a different direction,"McConnell told reporters at the Capitol.

The Congressional Review Act (Pub. L. No. 104-121) became law in 1996 as part of the “Contract with America,” a pledge made by the then-new Republican House that included easing the regulatory burden.

The law gives Congress 60 days after a rule is issued for both chambers to pass a joint resolution nullifying the regulation. The joint resolution is not subject to Senate filibuster, but is subject to debate lasting up to 10 hours.

Once Congress adjourns for the year, the clock is reset and any regulations issued 60 legislative days before adjournment may be considered the following year. In this case, the Congressional Research Service has determined that date to be June 13, 2016.

Meaning of Substantially Similar

One of the more “draconian” aspects of the law, according to regulatory scholars, is that once repealed, an agency is prevented from issuing a substantially similar regulation in its place.

This provision has never been litigated, however, and it is unclear just how similar a new rule could be, but Michalopoulos said he believes the law has an “all or nothing” aspect to it.

“It is seldom that the disagreements over an administrative rule are all-or-nothing disagreements,” Michalopoulos said. “Rather, they tend to be over whether the rule went too far, whether it was over intrusive, or didn’t go far enough.”

“The idea of just nixing it without any substitute is not a particularly productive idea,” he said.

Substitute Could Be Time Consuming

An agency could still come back and issue another rule that is not substantially similar, Michalopoulos said.

The problem with that is the agency still has to comply with the Administrative Procedure Act, so there would have to be a new notice of proposed rulemaking and a new opportunity for public comment, he said.

“It cannot happen on day one after the rule is nullified under the Congressional Review Act,” Michalopoulos said.

Certainly, if some rules were to be nullified under the CRA, the agency would be able to go back to the drawing board and make a new rule, so long as it was not substantially similar, Michalopoulos said.

“It would just take time,” he said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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