What’s Lurking Behind the 2024 Regulation Schedule

Regulators are facing a deadline for any new rules that they want to put in place, but that deadline isn’t the election, or even the inauguration of a new president.  

Instead, their calendars are set based on the Congressional Review Act, or CRA as it is sometimes known (though not to be confused with the Community Reinvestment Act for banks). 

CRA dates back to 1996, when it became law as part of the Small Business Regulatory Enforcement Fairness Act. It requires federal agencies to submit any major rule to the Government Accounting Office and to both houses of Congress before the rule goes into effect. 

Major rules are defined in the law as: 

“The CRA defines a major rule as one that 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. 5 U.S.C. § 804(2).” 

Additionally, the CRA gives Congress the ability to disapprove of major rules issued by regulatory agencies. If Congress overturns a rule, then it cannot go into effect and an agency cannot issue another rule that is substantially the same unless a new is law passed that enables or requires the agency to do so.  

The CRA is fairly restrictive and has only been used to overturn 20 rules since its inception. To do so requires both houses to approve a resolution and either the President to sign it or Congress to override a veto for it to take effect. It is essentially an up or down vote on the rule; Congress does not have the ability to rewrite the rules it receives.  

There is one additional wrinkle to all of this. Congress must act within 60 days of continuous session from the day it receives the rules. 

According to a GAO brief on the Act: 

“Days-of-continuous-session periods count every calendar day, including weekends and holidays, and exclude only days that either chamber (or both) is gone for more than three days pursuant to an adjournment resolution.” 
If Congress adjourns before the time runs out, then the next Congress has a full 60 days to review major rules starting on the 15th day of the new session in each chamber.  

Congress is scheduled to be in session until December 19, according to CQ Roll Call. That means, any final rule needs to be sent to Congress by early September because Congress is out in October.  
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So, the rest of this summer has the potential to be a busy one if regulators work to get new regulations out with tight comment and review timelines to beat the Congressional Review Act. The industry will need to be ready to move quickly on proposals.