Hundreds of Recent Final Rules Are Technically Unlawful

From: RegBlog/University of Pennsylvania Program on Regulation

Congress enacted the Congressional Review Act (CRA) in 1996 to reestablish a measure of legislative control over agency rulemaking. The law generally requires federal agencies to send almost all of their final rules to both houses of Congress and the U.S. Government Accountability Office (GAO) before those rules can take effect. As soon as a rule is “received by Congress,” any Member of Congress may introduce a CRA resolution of disapproval that, if signed into law, prevents the rule from taking effect or continuing in effect.

However, it appears that federal agencies have not submitted hundreds of final rules to GAO or Congress in recent years, and therefore those rules are technically not in effect. Agencies’ failure to submit rules as required also means that no Member of Congress has been able to introduce a CRA resolution of disapproval for any of these unsubmitted rules because such rules were never “received by Congress.” Furthermore, because the CRA prohibits judicial review of any “determination, finding, action, or omission,” it appears that no one can take the agencies to court to challenge the unsubmitted rules as procedurally invalid.

Starting soon after the CRA’s enactment, GAO began checking the Federal Register to ensure that all covered rules were being submitted. From 1997 through 2011, federal agencies submitted an average of about 3,600 rules to GAO each year, which was about 88% of the final rules published in the Federal Register in those years. (The percentage never fell below 82% in any year.)

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