By Chris Heck

WASHINGTON, Jan. 19, 2017 – Speculation is flying on whether the new Congress will use the Congressional Review Act (CRA) to repeal several of the Obama administration’s more controversial regulations. These regulations include the Farmer Fair Practices or GIPSA rule, the SNAP retailers rule, the school lunch and breakfast program’s nutrition standards, and the EPA’s Waters of the United States (WOTUS) rule. Recently, Senate Energy and Natural Resources Committee Chairwoman Lisa Murkowksi, R-Alaska, said the BLM Planning 2.0 rule was also a good candidate for a CRA resolution.

Despite the rumors, NACD would like to set the record straight: some well-known and contested actions cannot be challenged with CRA authority. The EPA’s Clean Power Plan and WOTUS rule – both finalized by the Obama administration – are not eligible for CRA action because they were finalized more than 60 legislative days ago and their window for review has passed.

The CRA was passed in 1996 to provide Congress with oversight of executive branch regulations and the implementation of laws. For major executive rules and regulations, the CRA created an expedited procedure to pass a joint resolution of disapproval and overturn a regulation in the first 60 legislative days after it takes effect.

The CRA defines a major regulation in one of three ways: the regulation has resulted in or is likely to result in (1) an annual effect on the economy of $100 million 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, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. All other regulations are considered “non-major.” Since June of last year, the Obama administration has finalized 1,400 minor and 160 major regulations.

The CRA only covers major regulations that have been finalized in the last 60 legislative days, starting the moment that Congress receives the regulation from the agency. This timeframe might seem limited, but it’s really not:

• Legislative days are very different than calendar days – the legislative calendar excludes days in which either the House or Senate has been adjourned for more than three consecutive days, which means congressional recesses and long weekends don’t count against the 60-day deadline.
• The CRA also has a special provision for when a congressional session ends before the 60 legislative days have passed. If a regulation has been submitted with less than 60 legislative days left before Congress adjourns for the year, the regulation falls into a “carry-over period” and is treated as if was finalized for the first time on the 15^th legislative day after Congress convenes for the new session.

If the regulation is eligible, the CRA allows the Senate to bypass many of the procedural hurdles that are used to slow legislation as it moves through the law-making process. For instance:

• If a CRA resolution to repeal a rule hasn’t been passed out of committee within 20 calendar days, a petition signed by 30 senators can move the resolution through committee and bring it before the full Senate;
• The CRA limits debate time to 10 hours and prohibits the use of common delay tactics often used in the Senate (points of order, amendments, etc); and
• Only a simple majority vote is require to pass the repeal resolution. Once passed, the president has the ability to veto the resolution, and like all other legislation, the veto would need to be overridden by Congress for the resolution to go into effect.

While Congress has tried to use the CRA several times since its creation, only one regulation has been repealed as a result. In 2001, Congress used the CRA on the Occupational Safety and Health Administration (OSHA)’s regulation requiring employers to take measures to curb ergonomic injuries in the workplace. More recently, in 2015, Congress attempted to use the CRA on the Obama administration’s Clean Power Plan; however, President Obama vetoed the resolution and Congress failed to override it.

While the CRA may appear to be an option for repealing problematic regulations, other administrative and agency actions may end up being more fruitful. Stay tuned to NACD’s blog for more on this topic.

NACD Government Affairs Associate Chris Heck is based in the association’s Washington, D.C., office. He can be reached by email at chris-heck[at]nacdnet.org.