The Congressional Review Act (“CRA”) provides expedited procedures for Congress to disapprove of an agency rule.  If both chambers of Congress pass a disapproval resolution and the president signs the resolution, the rule is invalidated and may not be re-promulgated in substantially the same form.  The CRA has long been viewed as a limited tool that can reach back and invalidate rules from approximately the last six months.  Todd Gaziano, of the Pacific Legal Foundation, has argued that if an agency failed to properly report a new rule to Congress as required under the CRA, the Act may be able to reach back all the way to 1996 when the CRA was enacted.  Using this theory, the current administration could trigger the CRA disapproval resolution process by submitting a report for an old rule to Congress and take advantage of the expedited congressional process.

This has set off something of a scramble to identify all of the rules that were never properly submitted, and thus subject to invalidation.  We are partnering with the Pacific Legal Foundation’s Red Tape Rollback project to identify rules.

Argive, a regulatory analysis project of U.S. Common Sense, identified nearly 700 economically significant rules that were not reported to the Government Accountability Office (“GAO”) for analysis as required by the CRA.

Inspired by their work, we decided to build on it by comparing the same data against the Executive Communications database maintained by the Library of Congress.  This database includes all of the direct communications from federal agencies to the relevant congressional committees of jurisdiction.

We uncovered hundreds of important rules that appeared in the Federal Register but were not received by Congress, as required by the CRA.  Those rules are listed below:

Download our data here to view filtered by agency.

Methodology

We started with the Mercatus Center’s QuantGov database for all documents published in the Federal Register from 1996 to March 14, 2017.  We filtered that dataset to “rules” that were identified as “economically significant.”

We then compared that data against the data we pulled from the Library of Congress’s list of Executive Communications.  We eliminated rules where the text in either the “document title” field or the “RIN” (regulation identifier number) field matched text in the congressional database.  The formula we used to run these comparisons was =COUNTIF(Cong.GovExCommData!A:A, “*” & [cell reference] & “*”)>0.  We also eliminated some EPA rules that were listed by that agency’s FRL numbers, as well as some duplicates.

Next, we reviewed each remaining document in the Federal Register and gave each a score from 0-3 to signify the item’s importance, with a 3 being the most important.  An item was scored as a 3 if it is a rule with national importance or interest; for example, a habitat designation under the Endangered Species Act.  An item was scored as a 2 if it was an interesting rule but that likely is of interest only to its regulated community; for example, the Farm Credit Administration’s risk-based capital requirements.  All remaining rules were given a score of 1, while notices and technical corrections were rated a 0.  This scoring system is of course subjective and is just a rough guide.  The list above it currently sorted with the most important rules at the top

We then clarified the data in the “issuing agency” and “sub agency” fields to enable researchers to filter the remaining data.

Advantages

• Our results include rules submitted to the Federal Register from 2015–2017. The Argive results are limited because the GAO database does not include reports about these recent rules.  We identified 74 unreported rules from this time period.

• Most importantly, we compared data against the rule reports Congress actually received, not only rule reports sent to GAO. We believe this is the most relevant analysis because the 60-day time limit imposed by the CRA begins when Congress receives the report for a rule.

• We compared our results against the Argive results and concluded we identified hundreds of important rules subject to the CRA. We also found numerous rules that were missing from both the GAO and congressional database (i.e., rules that were identified by both Argive and us).

Limitations

• The CRA covers more rules than those submitted by agencies to the Federal Register. For example, the CRA covers guidance documents and agency rules of procedure or practice, if those rules “substantially affect the rights or obligations of non-agency parties.”[1]  Our analysis does not include these rules because we started with a database that only included rules published in the Federal Register.

• Similarly, we did not review each rule to ensure that it met the CRA’s definition of a rule, which excludes rules that set rates and prices.

• The congressional Executive Communications database only includes rule reports sent to the Senate. To the best of our knowledge, there is no corresponding database of House communications.  This does not invalidate our results, however, because the CRA requires agencies to notify both chambers of new rules.  Therefore, even if the House received a communication identifying one of the rules on our list, the fact that the Senate did not receive a similar communication means the rule is still subject to the CRA.

We welcome feedback on these findings and methods.  You can contact me at james.valvo@causeofaction.org

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

Update: This post was updated on April 6, 2017 to include further revisions and analysis of the data.

[1] 5 U.S.C. § 804(3).