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How to use the Congressional Review Act to undo regulatory actions

Bloomberg Government regularly publishes insights, opinions and best practices from our community of senior leaders and decision-makers. This column is written by Kevin O’Neill, Dana Weekes, Sara Garofalo Linder and Roxana Boyd at Arnold & Porter Kaye Scholer LLP. 

With a Republican sweep of Congress and the executive branch, there will be a concerted effort this year to reform and restrain the current regulatory state. The Trump Administration and Republican Congress have a number of options to repeal regulations issued by the Obama Administration, with the Congressional Review Act (CRA) being one vehicle for affirmatively undoing some of the regulatory actions of the last six months.

The CRA is an oversight tool that Congress may use to repeal or prevent a regulation issued by a federal agency from taking effect. The 1996 law grants Congress: (1) proper notification of new agency regulations; and (2) the authority to use a joint resolution of disapproval to overturn a rule that may not meet the congressional intent. Under the CRA, a joint resolution of disapproval can only repeal an interim final rule or final rule in its entirety, as it does not necessarily apply to draft regulations, and Congress cannot use it to reform parts of a rule.

Congress has only successfully overturned one rule under the CRA since its enactment in 1996, the final rule on ergonomics standards issued by the Occupational Safety and Health Administration (OSHA) under the Clinton Administration. In 2001, the joint resolution of disapproval passed with bipartisan support in both the Senate (by a vote of 56-44, with 6 Democrats supporting the resolution) and the House (by a vote of 223-206, with 16 Democrats supporting the resolution and 13 Republicans voting against it). Interestingly, during President Obama’s first two years in office, Congress did not use the CRA to repeal any Bush Administration final rules, despite the Democratic control of Congress.

5 things you need to know about the CRA:  

1. As Congress has only repealed a rule under the CRA once before, more than 15 years ago, there are many unknown questions, including procedural questions and how a federal agency can engage on the issue following a repeal of the rule.

2. For rules issued by the Obama Administration on or after January 3, 2017, Congress has 60 legislative days from when the agency publishes each rule in the Federal Register or when Congress receives the rule report, whichever date is later, to use the CRA to repeal the regulation.

3. For a rule issued by the Obama Administration from June 13, 2016 (the parliamentarian in each chamber will set the actual date) through January 2, 2017, Congress has 60 legislative days starting from January 31 in the House and January 24 in the Senate to use the CRA to repeal the regulation.

4. Any use of the CRA cannot be filibustered in the Senate, which disadvantages those Democrats looking to challenge Republican efforts to restrain the current regulatory state.

5. Repealing a rule under the CRA likely foreclosures opportunities for a federal agency to reengage on the matter through a rulemaking for at least the next four years.

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