A Primer on the Small Business Regulatory Enforcement Fairness Act (AKA the Congressional Review Act) of 1996

#Links

• Congress.gov - Text of the law
• Barry Pineles, "The Small Business Regulatory Enforcement Fairness Act: New Options in Regulatory Relief," Commlaw Conspectus 5, no. 1 (1997): 29-42.
• U.S. Office of the Federal Register, The Rulemaking Process, January 2011

#The Law

Title V of this law deals with Congressional Review. While the law itself is titled the Small Business Regulatory Enforcement Fairness Act, title V is referred to as the Congressional Review Act of 1996.

This title allows Congress to pass a Joint Resolution that voids the rule in question based on certain timelines (located in Title V, Section 503, (a)(3)).

The President has the authority to issue a waiver for any rule that meets the below criteria and that is justified by a written notice to Congress:

• necessary because of an imminent threat to health or safety or other emergency;
• necessary for the enforcement of criminal laws;
• necessary for national security.

Section 504 outlines the specific procedures for Congressional disapproval of rules.

#The Process

##Federal Rules

Federal Agencies regularly submit rules in response to laws that are passed by Congress. These rules can be found at Regulations.gov.

If you skim the federal register for any historical rules, you'll notice many refer very specifically to public comments that were or were not considered in the final rule. In fact, agencies are required to public a Regulatory Plan annually and an Agenda of Regulatory and Deregulatory Actions semi-annually. Together, these documents are called the Unified Agenda, which is how an agency announces its future rulemaking activities to the public. These documents can be found either on www.RegInfo.gov or www.Regulations.gov and may be published to the Federal Register, meaning it can be found on www.FDSys.gov.

Federal agencies can enter into rulemaking through their own initiative or through a public petition for rulemaking. When an Agency distributes an Advance Notice of Proposed Rulemaking in the Federal Register, the agency is inviting all members of the public to comment to help shape the proposed rule. In other cases, agencies may limit their commenting audience to interested groups in a process called negotiated rulemaking.

Comment periods for proposed rules are generally 30-60 days, but may be longer for more complex rules or shorter when justified. Members of the public can request more time for comments and agencies can consider late comments, if time permits.

Once the comment window has closed and the agency has reviewed all substantial comments, a final rule is drafted. The Office of Information and Regulatory Affairs (OIRA) and, at times, the President review the draft final rule before publication to the Federal Register. Once a rule is published to the Federal Register, it generally goes into effect no less than 30 days later unless justified to begin earlier.

Not all rules undergo the proposed and comment process - agencies are authorized, when justified, to finalize rules without public input. In these cases, the justification will be included in the final rule.

##Congressional Review

Due to the Small Business Regulatory Enforcement Fairness Act (AKA the Congressional Review Act) of 1996, final rules must be sent to Congress and the GAO before they can enter into force.

If the House and Senate pass a resolution of disapproval and the President signs it (or if both chambers override a Presidential veto), the rule becomes void and cannot be republished by an agency in the same form without Congressional approval. Essentially, the agency whose rule was voided cannot issue a similar rule without Congressional authorization.

Between 1996 and approximately 2015, this law had only been applied once. It has seen significantly more action in the 115th Congress as a way to remove rules promulgated by agencies under the Obama administration.

#TLDR

This law allows Congress the opportunity, within a specified timeline relative to the rule's publication in the Federal Register and receipt of a report on the rule by Congress from the agency and from the comptroller general, to disapprove the rule through a Joint Resolution, which must be signed by the president.