Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress

Congressional Review Act: Disapproval of Rules
in a Subsequent Session of Congress
Updated September 3, 2008
Curtis W. Copeland
Specialist in American National Government
Government and Finance Division
Richard S. Beth
Specialist on Congress and the Legislative Process
Government and Finance Division

Congressional Review Act: Disapproval of Rules
in a Subsequent Session of Congress
Summary
The Congressional Review Act (“CRA,” 5 U.S.C. §§801-808) established a
special set of expedited or “fast track” legislative procedures, primarily in the Senate,
through which Congress may enact joint resolutions disapproving agencies’ final
rules. Members of Congress have 60 “days of continuous session” to introduce a
resolution of disapproval after a rule has been submitted to Congress or published in
the Federal Register, and the Senate has 60 “session days” to use CRA expedited
procedures. Although the CRA was considered a reassertion of congressional
authority over rulemaking agencies, only one rule has been disapproved using its
procedures, and that reversal was the result of a specific set of circumstances created
by a transition in party control of the presidency.
The CRA also indicates that if a rule is submitted to Congress less than 60
session days in the Senate or 60 legislative days in the House of Representatives
before Congress adjourns a session sine die, then the rule is carried over to the next
session of Congress and treated as if it had been submitted to Congress or published
in the Federal Register on the 15^th legislative day (House) or session day (Senate).
This restart of the CRA process in a new session of Congress occurs even if no joint
resolution of disapproval had been introduced regarding the rule during the preceding
session of Congress.
A review of the House and Senate calendars from the first session of the 100^th
Congress to the first session of the 110^th Congress indicates that the date triggering
the carryover provisions of the CRA (i.e., the date after which less than 60 legislative
or session days remained in a session) has usually been determined by the House of
Representatives, and that the date was almost always earlier in second sessions of
Congress (during which congressional elections are held) than in first sessions. The
median date after which the “carryover periods” began for all sessions during this
period was June 25, and the median for all second sessions was June 9. Since the
CRA was enacted in March 1996, the median starting point for these carryover
periods during second sessions of Congress has been somewhat earlier — June 7.
At the conclusion of most recent presidential administrations, the volume of
agency rulemaking has increased noticeably. In May 2008, the White House Chief
of Staff generally required federal agencies to finalize all regulations to be issued
during the Bush Administration by November 1, 2008. According to press accounts
and other sources, federal agencies are planning to issue a number of significant final
rules by the end of 2008. If any of these “midnight rules” are submitted within the
“carryover period” of the second session of the 110^th Congress, then they will be
subject to the carryover provisions of the CRA.
This report will be updated to reflect changes in factual material or other
developments.

Contents
In troduction ......................................................1
Bush Administration Memoranda Regarding “Midnight” Rules..............2
Card Memorandum............................................3
Bolten Memorandum...........................................4
CRA Time Periods and Their Potential Effect on Rules Proposed
Late in a Session..............................................4
Effective Dates................................................5
Initiation and Action Periods.....................................5
Carryover Period..............................................6
Starting Points for CRA Carryover Periods..............................6^th
Second Session of the 110 Congress.............................10
Final Rules That May Be Issued Late in the Second Session of
the 110^th Congress............................................10
Potential Effect of Carryover Period on Rules Issued Late in ^th
the Second Session of the 110 Congress ..........................14
List of Tables
Table 1. Starting Points for “Carryover Periods” During the 100^th Congress ^th
Through the First Session of the 110 Congress .....................9

Congressional Review Act: Disapproval of
Rules in a Subsequent Session of Congress
Introduction
The Congressional Review Act (“CRA,” 5 U.S.C. §§801-808) requires federal
agencies to submit all of their final rules to both houses of Congress and the
Government Accountability Office (GAO) before they can take effect. The act also
establishes a special set of expedited or “fast track” legislative procedures, primarily
in the Senate, through which Congress may enact joint resolutions disapproving
agencies’ final rules. Although the general powers of Congress permit it to overturn
agency rules by legislation, the CRA is unique in permitting the use of expedited
procedures for this purpose. If a rule is disapproved through the CRA procedures,
the act specifies not only that the rule “shall not take effect” (or shall not continue,
if it has already taken effect), but also that the rule may not be reissued in a¹
“substantially” similar form without subsequent statutory authorization.
The CRA was initially considered a reassertion of congressional authority over
rulemaking agencies, but thus far it has had little direct effect on agency rules.² After
enactment, a CRA joint resolution of disapproval must be presented to the President
for signature or veto. Under most circumstances, it is likely that the President would
veto the resolution to protect rules developed under his own administration, and it
may also be difficult for Congress to muster the two-thirds vote in both houses
needed to overturn the veto. Of the nearly 50,000 final rules that have been
submitted to Congress since the legislation was enacted in March 1996, the CRA has
been used to disapprove only one rule — the Occupational Safety and Health
Administration’s November 2000 final rule on ergonomics.³
The March 2001 rejection of the ergonomics rule was the result of a specific set
of circumstances created by a transition in party control of the presidency. The

¹ It is unclear how “substantially” similar a rule must be to be covered by this prohibition.
For as discussion of this issue, see CRS Report RL30116, Congressional Review of Agency
Rulemaking: An Update and Assessment of the Congressional Review Act After a Decade,
by Morton Rosenberg.
² See CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and
Assessment of the Congressional Review Act After a Decade, by Morton Rosenberg, for a
discussion of how the CRA has been implemented.
³ U.S. Department of Labor, Occupational Safety and Health Administration, “Ergonomics
Program,” 65 Federal Register 68261, November 14, 2000. Although the CRA has been
used to disapprove only one rule, it may have other, less direct or discernable effects (e.g.,
keeping Congress informed about agency rulemaking and preventing the publication of rules
that may be disapproved).

majority party in both houses of Congress was the same as the party of the incoming
President (George W. Bush). When the new Congress convened in 2001 and adopted
a resolution disapproving the rule published under the outgoing President (William
J. Clinton), the incoming President did not veto the resolution. Congress may be
most able to use the CRA to disapprove rules in similar, transition-related
ci rcum st ances.⁴
This report addresses some of the implications of the CRA with regard to
agency rulemaking in the final months of a presidential administration. It first notes
the practice of increased rulemaking activity during this period, and describes how
this practice has been addressed by two White House memoranda issued during the
current Bush Administration. The report then briefly identifies key elements of the
complex set of time periods established by the CRA — elements that define points
during the disapproval process at which various actions may occur. This discussion
focuses on the CRA provisions for carrying over the disapproval process into a
subsequent session of Congress, and indicates how rules submitted at the end of a
Congress may be affected by these provisions. Then, the report identifies the dates
in previous sessions of Congress after which rules have (since the enactment of the
CRA) been subject to these carryover provisions, and identifies some of the rules that
may be issued in the final months of the current Bush Administration.
Bush Administration Memoranda Regarding
“Midnight” Rules
At the conclusion of most recent presidential administrations, the volume of
agency rulemaking has increased noticeably — a phenomenon that has been
characterized as “midnight rulemaking.”⁵ As one observer stated, putting rules into
effect before the end of a presidency is “a way for an administration to have life after

⁴ See, for example, Susan E. Dudley, “Reversing Midnight Regulations,” Regulation, vol.

24 (Spring 2001), p. 9, who noted that the “veto threat is diminished [after a transition],

since the president whose administration issued the regulations is no longer in office.” See
also testimony of Curtis W. Copeland, in U.S. Congress, House Committee on Government
Reform, Subcommittee on Regulatory Affairs, The Effectiveness of Federal Regulatory^th^st
Reform Initiatives, 109 Cong., 1 sess., July 27, 2005, p. 13. See CRS Report RL30116,
Congressional Review of Agency Rulemaking: An Update and Assessment of the
Congressional Review Act After a Decade, by Morton Rosenberg, for a description of this
and several other possible factors affecting the law’s use.
⁵ See, for example, Jay Cochran, III, “The Cinderella Constraint: Why Regulations Increase
Significantly During Post-Election Quarters,” Mercatus Center, George Mason University,
March 8, 2001. Cochran determined that, in election years since 1948 with complete
executive branch turnover, the volume of rulemaking during the post-election quarter
(measured by the number of pages in the Federal Register) increased by an average of 27%
when compared to the same periods in non-election years. See also Jason M. Loring and
Liam R. Roth, “After Midnight: The Durability of the ‘Midnight’ Regulations Passed by the
Two Previous Outgoing Administrations,” Wake Forest Law Review, vol. 40 (2005), pp.
1441-1465, which indicated that the George H.W. Bush and William J. Clinton
Administrations issued numerous “midnight rules.”

death,”⁶ for the only way that a subsequent administration can change or eliminate
the rule is by going back through the often lengthy rulemaking processes that are
required by the Administrative Procedure Act (5 U.S.C. §551 et seq.) and various
other statutes and executive orders.⁷ The current Bush Administration has responded
to this situation by delaying and ultimately reducing the volume of effective rules
issued in the last months of the Clinton Administration, and by protecting rules
issued in its own last months from the possibility of similarly being rendered
ineffective.
Card Memorandum
During the final months of the Clinton Administration, federal agencies issued
hundreds of final rules — a number of which were considered “major” under the
CRA.⁸ In response to this action, on January 20, 2001, the Chief of Staff and
Assistant to the new President, Andrew H. Card, Jr., sent a memorandum to the heads
of all executive departments and agencies generally directing them to (1) not send
proposed or final regulations to the Office of the Federal Register (OFR), (2)
withdraw regulations that had been sent to the OFR but not published in the Federal
Register, and (3) postpone for 60 days the effective date of regulations that had been
published in the Federal Register but had not yet taken effect.⁹ The memorandum
cited the desire to “ensure that the President’s appointees have the opportunity to
review any new or pending regulations.” In 2002, GAO reported that 90 final rules
had their effective dates delayed as a result of the Card memorandum, and 15 rules
still had not taken effect one year after the memorandum was issued.¹⁰

⁶ John M. Broder, “A Legacy Bush Can Control,” New York Times, September 9, 2007, p.

4.1, quoting Phillip Clapp, president of the National Environmental Trust.

⁷ For more information on these statutes and executive orders, see CRS Report RL32240,
The Federal Rulemaking Process: An Overview, by Curtis W. Copeland.
⁸ The CRA defines a rule as “major” if, among other things, it has a $100 million impact on
the economy. According to GAO, federal agencies issue an average of about 60 major rules
each year. Major rules issued by federal agencies in January 2001 included those (1)
prohibiting road construction and harvesting in certain roadless areas of National Forest
Service land, (2) establishing energy conservation standards for clothes washers and central
air conditioners, (3) implementing requirements for the State Children’s Health Insurance
Program, (4) restricting the use of snowmobiles in Yellowstone and Grand Teton National
Parks, and (5) setting maximum contaminant levels for arsenic in community water systems.
⁹ See [http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf] for a copy of this
memorandum. Federal courts have generally considered any delay in a rule’s effective date
to require notice and comment rulemaking. See Natural Resources Defense Council, Inc.
v. EPA, 683 F.2d 752, 761 (3d Cir. 1982); and Council of the Southern Mountains v.
Donovan, 653 F.2d 573 (D.C. Cir. 1981). Although some agencies used notice and
comment rulemaking to delay effective dates pursuant to the Card memorandum, most
agencies simply published the changes and invoked the Administrative Procedure Act’s
“good cause” exception. One such action was rejected by the court. See Natural Resources
Defense Council v. Abraham, 355 F.3d 179, 204-05 (2d Cir 2004).
¹⁰ U.S. General Accounting Office, Regulatory Review: Delay of Effective Dates of Final
Rules Subject to the Administration’s January 20, 2001, Memorandum, GAO-02-370R,
(continued...)

Bolten Memorandum
The Bush Administration has also taken action in anticipation of possible
“midnight rules” at the end of the current President’s term. On May 9, 2008, White
House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of
executive departments and agencies stating that the Administration needed to “resist
the historical tendency of administrations to increase regulatory activity in their final
months.” Therefore, Bolten said that, except in “extraordinary circumstances,
regulations to be finalized in this Administration should be proposed no later than
June 1, 2008, and final regulations should be issued no later than November 1,
2008.”¹¹ He also said that the Administrator of the Office of Information and
Regulatory Affairs (OIRA) within the Office of Management and Budget would
“coordinate an effort to complete Administration priorities in this final year,” and the
OIRA Administrator would “report on a regular basis regarding agency compliance
with this memorandum.”¹²
CRA Time Periods and Their Potential Effect on
Rules Proposed Late in a Session
The CRA is a complex statute, and among the act’s chief complexities is its use
of at least four different ways to measure the passage of time, each for different
purposes:
^!calendar days;
^!days of continuous session, which excludes all days when either the
House of Representatives or the Senate is adjourned for more than
three days;
^!session days, which include only calendar days on which a chamber
is in session; and
^!legislative days, which end each time a chamber adjourns and begin
each time it convenes after an adjournment.
The following sections describe how the CRA uses each of these measures of time,
focusing especially on the way in which they affect Congress’s ability to use the CRA

¹⁰ (...continued)
February 15, 2002.
¹¹ Between June 1 and August 8, 2008, however, federal agencies sent more than 40
proposed rules to the Office of Management and Budget for review prior to publication in
the Federal Register. Ralph Lindeman, “Agencies Continue to Proposed New Rules After
White House-Imposed June Deadline,” BNA Daily Report for Executives, August 11, 2008,
p. A-9.
¹² OIRA reviews all significant rules before they are published in the Federal Register, and
is the President’s chief representative in the rulemaking process. See CRS Report RL32397,
Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs, by
Curtis W. Copeland.

disapproval process for rules submitted toward the end of a session of Congress, and
especially toward the end of a presidential term.
Effective Dates
Section 801(a)(3) of the CRA generally requires that the effective dates of all
“major” rules be delayed for 60 calendar days after the date they are provided to
Congress or published in the Federal Register, whichever is later. This delay in the
effective dates helps to ensure that Congress has an opportunity to review and, if
necessary, disapprove these major rules before they take effect. All non-major rules
are allowed to take effect as stipulated in the rules themselves.¹³ Nevertheless, even
if a rule has already taken effect, the CRA can still be used to disapprove it if time
remains in the periods established for congressional proceedings.
Initiation and Action Periods
Section 802(a) of the CRA states that a joint resolution of disapproval may be
introduced as soon as a rule is received by Congress, but the resolution must be
introduced no later than 60 days after that date, “excluding days either House of
Congress is adjourned for more than 3 days during a session of Congress.” This 60
days of continuous session defines the “initiation period” for CRA resolutions of
disapproval. For example, if the House of Representatives and the Senate adjourn
on a Friday and both reconvene on the following Monday or Tuesday, the 60-day
“clock” for the introduction of resolutions of disapproval continues to run throughout
the weekend because neither house was out of session for more than three days. On
the other hand, if the House is in recess for a month but the Senate continues in
session, then the 60-day “clock” for this “initiation period” stops until the House
comes back into session.
Once introduced, resolutions of disapproval are referred to the committees of
jurisdiction in each house of Congress. The House of Representatives would
consider the resolution under its general procedures, very likely as prescribed by a
special rule reported from the Committee on Rules. In the Senate, however, if the
committee has not reported a disapproval resolution within 20 calendar days after the
regulation has been submitted and published, then the committee may be discharged
of its responsibilities and the resolution placed on the Senate calendar if 30 Senators
submit a petition to do so.

¹³ The Administrative Procedure Act (5 U.S.C. §553(d)) generally requires agencies to
publish their rules 30 days before their effective dates, but exempts certain categories of
rules from this requirement (e.g., interpretative rules and statements of policy), and allows
agencies to make rules effective in less than 30 days for “good cause.” Also, the CRA (5
U.S.C. §808) states that “(1) any rule that establishes, modifies, opens, closes, or conducts
a regulatory program for a commercial, recreational, or subsistence activity related to
hunting, fishing, or camping, or (2) any rule which an agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefore in the rule issued) that
notice and public procedure thereon are impracticable, unnecessary, or contrary to the public
interest, shall take effect at such time as the Federal agency promulgating the rule
determines.”

Once the Senate committee has reported or been discharged, the CRA makes
consideration of the measure privileged, prohibits various other dilatory actions,
disallows amendment, and limits floor debate to 10 hours. Section 802(e) of the
CRA states that the Senate has 60 session days from the date a rule is submitted to
Congress or published in the Federal Register to use these expedited procedures and
act on a joint resolution of disapproval.¹⁴ This “action period” for the Senate
includes only the calendar days on which the Senate is actually in session, in contrast
to the “days of continuous session” for the initiation period, which includes all days
other than those when either house is in adjournment lasting more than three days.
Because of this difference in which days are counted, the “action period” will
normally last longer than the “initiation period.”
Carryover Period
Section 801(d) of the CRA provides that, if Congress adjourns its annual session
sine die less than 60 legislative days in the House of Representatives or 60 session
days in the Senate after a rule is submitted to it, then the rule is subject, during the
following session of Congress, to (1) a new initiation period in both chambers and
(2) a new action period in the Senate.¹⁵ The purpose of this provision is to ensure
that both houses of Congress have sufficient time to consider disapproving rules
submitted during this end-of-session “carryover period.” In any given year, the
carryover period begins after the 60^th legislative day in the House or session day in
the Senate before the sine die adjournment, whichever date is earlier. The renewal
of the CRA process in the following session occurs even if no resolution to
disapprove the rule had been introduced during the session when the rule was
submitted.
For purposes of this new initiation period and Senate action period, a rule
originally submitted during the carryover period of the previous session is treated as
if it had published in the Federal Register on the 15^th legislative day (House) or
session day (Senate) after Congress reconvenes for the next session. In each
chamber, resolutions of disapproval may be introduced at any point in the 60 days of
continuous session of Congress that follow this date, and the Senate may act on the
resolution during the 60 days of session that follow the same date.
Starting Points for CRA Carryover Periods
In light of the CRA’s requirement that major rules be delayed for 60 calendar
days, the May 2008 Bolten memorandum’s requirement that final rules be published

¹⁴ The action period applies only to initial consideration in the Senate because the CRA
establishes no expedited procedures for initial House consideration.
¹⁵ It is typically appropriate that the House component of the carryover period is measured
in legislative days, because the House usually adjourns at the end of each daily session, so
that its legislative days and session days generally coincide. The Senate, on the other hand,
sometimes continues a single legislative day through several actual days of session by using
daily recesses rather than adjourning. For this reason , it is generally appropriate that the
Senate component of the “carryover period” is measured directly by days of session.

in the Federal Register by November 1, 2008, indicates that these rules will have
taken effect before the 111^th Congress begins and the next President takes office in
January 2009. As a result, the Bolten memorandum may also have the effect of
preventing the next presidential administration from doing what was done via the
Card memorandum — directing federal agencies to extend the effective dates of any
rules that had been published during the Bush Administration but had not taken effect
(since the rules would have already taken effect by the time the next President takes
office). However, many rules submitted before the Bolten memorandum deadline
will remain subject to congressional disapproval in the 111^th Congress because they
will not have been submitted before the starting point of the carryover period, and
because the CRA permits Congress to enact resolutions of disapproval regarding
rules that have already taken effect.
Although the exact starting point for the CRA carryover period in the second
session of the 110^th Congress can be determined only after sine die adjournment has
taken place, the likely date or range of dates may be illuminated by examining
congressional activity in prior years. To identify these earlier starting points, CRS
examined the calendars of the House and the Senate for all sessions of Congress
during the previous 20 years (i.e., from the 100^th Congress, which began in 1987,
through the first session of the 110^th Congress in 2007). Counting backwards from
the end of each session, we determined the date after which there were either less
than 60 days of session in the Senate or less than 60 legislative days in the House.
Although some of these sessions of Congress predate the enactment of the CRA, the
starting points for those sessions were included to better understand the trends in
these dates.
Table 1 below presents these data. For each session of Congress, the earlier of
the House or Senate starting point dates is shown in the table in bold face. Since the
CRA was enacted in March 1996, any rule submitted after the specified date in that
session was available for disapproval under the CRA process during the following
session of Congress. As the table indicates, the starting points for the CRA carryover
periods varied between the two houses of Congress in each session, and across the
sessions within each chamber. The data also show the following:
^!In all but two sessions of Congress during this period (i.e., the first
and second sessions of the 101^st Congress), the starting point date for
the House of Representatives occurred earlier than the starting point
date for the Senate. In every session since the CRA was enacted in
March 1996, the House starting point has determined the relevant
date for CRA carryovers to the next session of Congress.
^!Across all of these sessions of Congress, the earliest starting point
for the carryover period was May 12 (second session of the 108^th
Congress), and the latest date was September 9 (first session, 100^th
Congress). However, it has been unusual for the starting point to be
before June or after July. The median relevant starting point (i.e.,
half occurring before, half after) for all of these sessions of Congress
was June 25.

^!The starting points for the CRA carryover periods were almost
always earlier during the second sessions of Congress (i.e., during
election years) than the starting points in the first sessions.¹⁶ The
median starting point during all second sessions was June 9; the
median during first sessions was July 19. This difference in median
starting points is explained by the fact that both houses often adjourn
or recess just prior to and/or after congressional elections.
^!Since the CRA was enacted in March 1996, the starting points for
the carryover periods during second sessions of Congress have been
even earlier than for the full period, ranging from May 12 to June 23,
with the median starting point being June 7.
Any rule that was submitted to Congress after the relevant starting point date in any
session since the CRA was enacted in March 1996 would not have had 60 days of
session in both houses, and Congress’ ability to introduce and act on CRA resolutions
of disapproval regarding the rule carried over to the next session of Congress. A new
initiation period and a new action period for the rule began on the 15^th session
(Senate) or legislative (House) day of that new session of Congress.

¹⁶ The starting points for carryover periods in second sessions most commonly occurred in
June, with the dates ranging from May 12 to June 27. The starting points in first sessions
most commonly occurred in July, with the dates ranging from June 25 to September 9.

Table 1. Starting Points for “Carryover Periods” During the
100^th Congress Through the First Session of the 110^th Congress
House of Representatives ^thSenate^th
CongressSession— 60 legislative day from — 60 session day from
the end of the sessionthe end of the session
100^th1^st September 9, 1987September 10, 1987
2^nd June 9, 1988June 20, 1988
101^st1^st July 25, 1989July 24, 1989
2^nd July 11, 1990June 27, 1990
102^nd1^st July 17, 1991July 25, 1991
2^nd June 4, 1992June 10, 1992
103^rd1^st July 19, 1993July 27, 1993
2^nd June 16, 1994June 30, 1994
104^th1^st August 2, 1995September 25, 1995
2^nd May 28, 1996June 4, 1996
105^th1^st June 25, 1997July 11, 1997
2^nd June 18, 1998June 26, 1998
106^th1^st July 15, 1999July 21, 1999
2^nd June 22, 2000July 12, 2000
107^th1^st July 30, 2001September 6, 2001
2^nd June 18, 2002July 10, 2002
108^th1^st June 26, 2003July 28, 2003
2^nd May 12, 2004June 8, 2004
109^th1^st July 19, 2005July 27, 2005
2^nd May 23, 2006June 15, 2006
110^th1^st July 25, 2007September 10, 2007
^Source:^C^R^{S an}^aly^s^is^of^Hou^s^{e of}^R^e^pres^en^tativ^es^an^{d Sen}^a^te^C^a^l^e^ndar^s^.
^Note:^T^h^{e earlier o}^f^th^{e Hou}^s^{e or Sen}^a^{te dates}^w^ithⁱⁿ^each^s^e^s^sⁱ^on^{, s}^e^{t in}^bo^ldf^a^ce^{, d}^e^ter^mⁱⁿ^{es th}^e
^d^a^{te af}^ter^w^h^ich^su^b^m^itted^r^u^les^w^o^u^l^d^b^e^car^rⁱ^ed^o^v^er^to^th^{e n}^e^x^t^sessioⁿ^o^f^Coⁿ^g^r^{ess u}ⁿ^d^er^th^{e CRA}^.^th
^D^a^t^e^s^pri^o^r^t^o^t^h^{e en}^act^m^eⁿ^t^of^t^h^{e C}^R^Aⁱⁿ^March^{1996 (i}^{.e., pri}^o^{r t}^o^t^h^e^s^econ^d^s^e^s^sⁱ^on^of^t^h^e¹⁰⁴
^Coⁿ^g^r^ess)^ar^{e in}^clu^d^ed^f^o^r^illu^str^a^tioⁿ^oⁿ^ly^.

Second Session of the 110^th Congress
Whether the patterns discussed above will hold true in the second session of the
110^th Congress is currently unclear. The targeted adjournment date in the House of
Representatives is September 26, 2008, but no targeted adjournment has been set in
the Senate. It is possible that the House and the Senate could have so many days in
session late in the year that the starting point for the carryover period (determining
which rules would be eligible for new CRA initiation and action periods in the 111^th
Congress) would fall later than any of the above dates. However, doing so would
require both houses of Congress to be in session for more days at the end of the
session than has occurred during the past 20 years.
Final Rules That May Be Issued Late in the Second
Session of the 110^th Congress
Another way to understand the significance of the starting point dates for CRA
carryover periods is to identify some of the rules that may be issued late in the second
session of the 110^th Congress (and that therefore may be subject to disapproval during^th
the first session of the 111 Congress). According to press accounts and other
sources, federal agencies are reportedly planning to make a number of controversial¹⁷
proposed rules final by the end of calendar year 2008, including:
^!an Environmental Protection Agency (EPA) revision of the
definition of “solid waste” that, if consistent with the October 2003
proposed rule, would exclude certain types of sludge and byproducts
(referred to in the proposed rule as “hazardous secondary waste”)
from regulation under the Resource Conservation and Recovery
Act.¹⁸
^!a Department of Transportation (DOT) rule updating existing
standards for roof-crush resistance in passenger vehicles. Several
Members of Congress have criticized the August 2005 proposed
rule, and after a June 4, 2008, Senate oversight hearing and a
bipartisan letter from several Senators, DOT asked Congress to

¹⁷ A number of these rules were identified in Ralph Lindeman, “White House Deadline on
Agency Rulemaking May See Significant Slippage, Experts Say,” BNA Daily Report for
Executives, June 6, 2008, p. C-1; and Cindy Skrzycki, “Bush Wants Sun to Set on Midnight
Regulations,” Washington Post, June 3, 2008, p. D-3.
¹⁸ For the proposed rule, see U.S. Environmental Protection Agency, “Revisions to the
Definition of Solid Waste,” 68 Federal Register 61557, October 28, 2003. The final rule
has been under review at OIRA since April 2008. For more information on this rule and the
perspectives of various parties, see Charlotte E. Tucker, “EPA Completing Last Steps for
Regulation to Redefine Waste to Encourage Recycling,” BNA Daily Report for Executives,
July 17, 2008, p. C-1.

extend the statutory deadline for the issuance of the final rule until
October 2008.¹⁹
^!an EPA “new source review” rule that, if made final, would alter
current requirements for when upgrades at older power plants would
require the installation of modern anti-pollution equipment.²⁰ EPA
said that the change would balance environmental protection with
the “economic need of sources to use existing physical and operating
capacity.” However, environmental groups contend that the change
would weaken existing protections and is counter to a recent
decision of the Supreme Court related to this issue.²¹
^!an EPA rule that is expected to change how pollution levels are
measured under certain parts of the Clean Air Act, and that some
contend will change emissions standards for industrial facilities
operating near national parks.²²
^!a National Park Service rule that, if consistent with the April 2008
proposal, would change the agency’s current policy and permit state
laws to determine whether concealed firearms could be carried in
national parks.²³

¹⁹ “DOT Secretary Peters Seeks Extension to Oct. 1 of Roof Crush Final Rule Deadline,”
BNA Daily Report for Executives, July 2, 2008, p. A-12.
²⁰ For the proposed rule, see U.S. Environmental Protection Agency, “Supplemental Notice
of Proposed Rulemaking for Prevention of Significant Deterioration and Nonattainment
New Source Review: Emission Increases for Electric Generating Units,” 72 Federal
Register 26201, May 8, 2007.
²¹ American Lung Association, EarthJustice, Environmental Defense, Natural Resources
Defense Council, and Sierra Club; “Comments on EPA’s Proposed ‘Supplemental Notice
of Proposed Rulemaking for Prevention of Significant Deterioration and Nonattainment
New Source Review: Emission Increases for Electric Generating Units,’” available at
[ h t t p : / / www.r e gu l a t i ons.gov/ f dmspubl i c / c omponent / mai n?ma i n = D o c u me n t D e t a i l & o = 0 9

00006480273d62].

²² Juliet Eilperin, “Clean-Air Rules Protecting Parks Set to Be Eased,” Washington Post,
May 16, 2008, p. A-1; and Mark Clayton, “Why National Parks, Coal-Fired Power Plants
May Be Neighbors,” Christian Science Monitor, April 24, 2008, p. 13. For the proposed
rule, see U.S. Environmental Protection Agency, “Prevention of Significant Deterioration
New Source Review: Refinement of Increment Modeling Procedures,” 72 Federal Register
31371, June 6, 2007. In an April 2008 letter responding to questions posed by the Chairman
of the House Committee on Oversight and Government Reform, EPA said it was “unable
to conclusively confirm or deny” suggestions from the National Park Service that the
proposed rule would make it easier to build power plants near national parks. See
[http://oversight.house.gov/ documents/20080514180808.pdf].
²³ U.S. Department of the Interior, National Park Service, “General Regulations for Areas
Administered by the National Park Service and the Fish and Wildlife Service,” 73 Federal
Register 2338, April 30, 2008.

^!a Department of Justice (DOJ) proposed rule that would “clarify and
update” the policies governing criminal intelligence systems that
receive federal funding, but that some contend would make it easier
for state and local police to collect, share, and retain sensitive
information about Americans, even when no underlying crime is
suspect ed.²⁴
^!a National Highway Traffic Safety Administration rule on how
automakers are to meet stricter fuel economy standards for cars and
light trucks pursuant to the Energy Independence and Security Act
of 2007, which requires the agency to raise fuel economy standards
to a fleet wide average of at least 35 miles per gallon by 2020.²⁵
^!a Food and Drug Administration (FDA) rule that, if consistent with
the proposal, would prohibit pharmaceutical companies and
manufacturers of medical devices from changing the labeling of an
approved drug, biologic, or medical device unless there is “evidence
of a causal association” between the product and a safety concern.²⁶
Several committee and subcommittee chairmen in the House and
Senate have written to FDA expressing concern that this standard,
if made final, would “inevitably result in fewer company-initiated
warnings .”²⁷
^!an Employment Standards Administration (ESA) rule that, if made
final, would change the implementation of the Family and Medical
Leave Act of 1993.²⁸ ESA and others defended the rule at an April
2008 congressional hearing, while other participants in the hearing
(including the chairwoman of the subcommittee) said it would make
it more difficult for workers to exercise their rights under the act.²⁹
The proposed rule is expected to be made final in November 2008.

²⁴ For the proposed rule, see U.S. Department of Justice, Office of Justice Programs,
“Criminal Intelligence Systems Operating Procedures,” 73 Federal Register 44673, July 31,
2008. For a characterization of the rule, see Spencer S. Hsu and Carrie Johnson, “U.S. May
Ease Police Spy Rules,” Washington Post, August 16, 2008, p. A-1.
²⁵ For the proposed rule, see U.S. Department of Transportation, National Highway Traffic
Safety Administration, “Average Fuel Economy Standards, Passenger Cars and Light
Trucks; Model Years 2011-2015,” 73 Federal Register 24351, May 2, 2008.
²⁶ U.S. Department of Health and Human Services, Food and Drug Administration,
“Supplemental Applications Proposing Labeling Changes for Approved Drugs, Biologics,
and Medical Devices,” 73 Federal Register 2848, January 16, 2008.
²⁷ See [http://www.speaker.gov/blog/?p=1068] for a copy of this letter and related materials.
²⁸ For the proposed rule, see U.S. Department of Labor, Employment Standards
Administration, “The Family and Medical Leave Act of 1993,” 73 Federal Register 7875,
February 11, 2008.
²⁹ Derrick Cain, “Witnesses Say DOL Should Scrap FMLA Rule, Call on Congress to
Expand Leave Benefits,” BNA Daily Labor Report, April 11, 2008, p. A-1.

^!a Department of the Interior (DOI) rule that, in the words of the
proposal, requires that surface coal mining operations “minimize the
creation of excess spoil and the adverse environmental impacts of
fills,” but that some observers have said would allow deposits of
waste mountaintop material within 100 feet of certain streams.³⁰
^!a proposed amendment to the Federal Acquisition Regulation to
require certain contractors and subcontractors to use the E-Verify
system to confirm that certain of their employees are eligible to work
in the United States, but which the U.S. Chamber of Commerce and
others said contravenes the intent of Congress and raises numerous
practical difficulties.³¹
^!a Housing and Urban Development (HUD) rule that would amend
disclosure regulations under the Real Estate Settlement and
Procedures Act (RESPA), and that some Members of Congress have
requested that HUD withdraw.³²
^!a Department of Health and Human Services proposed rule that
would protect medical providers’ right to choose whether they would
help perform abortions and other medical procedures, but that some
have said could affect the ability of women to obtain certain forms
of contraception and other health services.³³

³⁰ For the proposed rule, see U.S. Department of the Interior, Office of Surface Mining
Reclamation and Enforcement, “Excess Spoil, Coal Mine Waste, and Buffers for Waters of
the United States,” 72 Federal Register 48889, August 24, 2007. For characterizations of
the rule, see John M. Broder, “Rule to Expand Mountaintop Coal Mining,” New York Times,
August 23, 2007, p. A-1.
³¹ For the proposed rule, see U.S. Department of Defense, General Services Administration,
and National Aeronautics and Space Administration, “Federal Acquisition Regulation; FAR
Case 2007-013, Employment Eligibility Verification,” 73 Federal Register 33374, June 12,
2008. See [http://www.uschamber.com/assets/labor/080811_fed_Ks.pdf] for the views of
the U.S. Chamber of Commerce. The day after this proposed rule was published, the
Department of Homeland Security announced it was requiring its contractors to use the E-
verify program. U.S. Department of Homeland Security, Office of the Secretary,
“Designation of the Electronic Employment Eligibility Verification System Under Executive
Order 12989, as Amended by the Executive Order Entitled ‘Amending Executive Order

12989, as Amended’ of June 6, 2008,” 73 Federal Register 33837, June 13, 2008.

³² Mike Ferullo, “House Members Circulate Letter to HUD Urging Withdrawal of Proposed
RESPA Rule,” BNA Daily Report for Executives, July 22, 2008, p. A-28. For the proposed
rule, see U.S. Department of Housing and Urban Development, “Real Estate Settlement
Procedures Act (RESPA): Proposed Rule to Simplify and Improve the Process of Obtaining
Mortgages and Reduce Consumer Settlement Costs,” 73 Federal Register 14029, March 14,

2008.

³³ See [http://www.hhs.gov/news/press/2008pres/08/20080821reg.pdf] for a copy of the
proposed rule. For characterizations of the rule, see Rob Stein, “Protections Set for
Antiabortion Health Workers,” Washington Post, August 22, 2008, p. A-1; and Robert Pear,
“Abortion Proposal Sets Condition on Aid,” New York Times, July 15, 2008, p. A-1.

^!a Department of Labor proposed rule that would change the way that
occupational health risk assessments are conducted within the
department. Legislation has been introduced in the 110^th Congress
(H.R. 6660) that would prohibit the issuance or enforcement of this
rule.³⁴
^!a DOI proposed rule that would, among other things, give federal
agencies greater responsibility in determining when and how their
actions may affect species under the Endangered Species Act.³⁵
Several Members of Congress have expressed concerns about the
draft rule, and congressional hearings are expected.³⁶
Potential Effect of Carryover Period on Rules Issued
Late in the Second Session of the 110^th Congress
The foregoing information suggests the following observations:
^!Federal departments and agencies are likely to issue a number of
significant final rules during the last months of the current Bush
Administration, as has been done at the conclusion of most recent
presidential administrations. Some Members of Congress have
already expressed concerns about several of those Bush
Administration “midnight” rules, should they be issued.
^!All of the final rules that are submitted to Congress during the
second session of the 110^th Congress with less than 60 session days
left in the Senate or less than 60 legislative days left in the House
will be automatically be carried over to the 111^th Congress. Starting
on the 15^th legislative day (House) or session day (Senate) of the new
session, each rule will have a new CRA initiation period (60 days of

³⁴ For the proposed rule, see U.S. Department of Labor, Office of the Secretary,
“Requirements for DOL Agencies’ Assessment of Occupational Health Risks,” 73 Federal
Register 50909, August 29, 2008. For characterizations of the rule, see Carol D. Leonnig,
“U.S. Rushes to Change Workplace Toxin Rules,” Washington Post, July 23, 2008, p. A-1;
and Gayle Cinquegrani, “Miller Introduces House Bill to Prohibit DOL ‘Secret Rule’ on
Workplace Toxin Exposure,” BNA Daily Report for Executives, August 1, 2008, p. A-7. On
August 18, 2008, a Washington Post editorial recommended that the Department of Labor
withdraw its proposed rule (“A Toxic Proposal: The Labor Department Politicizes a
Regulation of Workplace Health,” Washington Post, August 18, 2008, p. A-10).
³⁵ For the proposed rule, see U.S. Department of the Interior, Fish and Wildlife Service, and
U.S. Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, “Interagency Cooperation Under the Endangered Species
Act,” 73 Federal Register 47868, August 15, 2008. See also Juliet Eilperin, “Endangered
Species Act Changes Give Agencies More Say,” Washington Post, August 12, 2008, p. A-1.
³⁶ For in-depth information about this rule, see CRS Report RL34641, Proposed Changes
to Regulations Governing Consultation Under the Endangered Species Act (ESA), by
Kristina Alexander and M. Lynne Corn.

continuous session of Congress) and a new action period in the
Senate (60 days of session) for resolutions of disapproval.
^!House and Senate calendars from previous sessions of Congress,
particularly sessions that occurred during election years (second
sessions), suggest that any final rule submitted to Congress after
June 2008 may be carried over to the first session of the 111^th
Congress, and may be subject to a resolution of disapproval during
that session. However, the starting point for the carryover period
could slip to late September or early October if an unprecedented
level of congressional activity occurs late the session.
^!Expedited procedures in the Senate and special rules in the House
can help ensure that such resolutions are acted upon in each
chamber. However, the enactment of any resolution of disapproval
will still depend heavily on the action of the new President. If the
resolution of disapproval is vetoed, it will require a two-thirds vote
in both houses of Congress for the targeted rule to be rejected.
The memorandum issued by White House Chief of Staff Bolten directing
agencies to issue most final rules by November 1, 2008, would, if fully implemented,
ensure that most of the rules — even those considered “major” under the CRA and
whose effective dates must be delayed for 60 days — would take effect before the
111^th Congress begins and the next President takes office in January 2009. As noted
earlier in this report, the Bolten memorandum may also have the effect of preventing
the next presidential administration from doing what was done via the Card
memorandum — directing federal agencies to extend the effective dates of any rules
that had been published during the Bush Administration but had not taken effect
(since the rules would have already taken effect by the time the next President takes
office). In addition, some believe that the memorandum may be cited as a reason why
certain rules will not be issued before the end of the Bush Administration.³⁷
However, as also pointed out earlier, the Bolten memorandum will have no
impact on the next Congress’s ability to overturn agency rules that are submitted
within the last 60 legislative or session days in each house of Congress, since the
CRA permits Congress to enact resolutions of disapproval regarding rules that have
already taken effect. Also, once a rule is disapproved, the CRA prevents the agency
from proposing a substantially similar rule without subsequent statutory
authorization.
Even without the CRA, though, Congress can stop rulemaking in other ways.
For example, each year, Congress includes provisions in appropriations legislation
prohibiting rulemaking within particular policy areas, preventing particular proposed
rules from becoming final, and prohibiting or affecting the implementation or

³⁷ Charlie Savage and Robert Pear, “Administration Moves to Avert a Late Rules Rush,”
New York Times, May 31, 2008, p. A-1.

enforcement of rules.³⁸ However, unlike disapprovals under the CRA, the regulatory
requirements that have been put into effect are not rescinded, and the agency is not
prohibited from issuing a substantially similar regulation in the future.

³⁸ CRS Report RL34354, Congressional Influences on Rulemaking Through Appropriations
Provisions, by Curtis W. Copeland.