Bud's Offshore Energy (BOE)

Exercising authority granted in the Congressional Review Act (Chapter 8 of Title 5 of the United States Code), Congress passed Joint Resolution 11 nullifying the Bureau of Ocean Energy Management rule titled “Protection of Marine Archaeological Resources” (Sept. 3, 2024).

Nullification of a final rule is not common. Since its Enactment in 1996, the CRA has been used to overturn only 20 rules. This is the first time an OCS energy rule has been nullified.

Enactment of a CRA resolution of disapproval is unlikely in most circumstances, because a President would be expected to veto a joint resolution disapproving a rule issued by the President’s own Administration.

There are also time limitations for nullifying a rule. The joint resolution must be introduced during a 60-days- of-continuous-session period beginning when the rule has been published in the Federal Register and been received by Congress. However, if within 60 session days after a rule is submitted, Congress adjourns its session, the periods to introduce and act on a disapproval resolution reoccur in their entirety in the next session of Congress.

It’s also noteworthy that a CRA resolution cannot be filibustered if the Senate acts on the resolution during a 60-days-of-Senate-session period beginning when the rule has been received by Congress.

Most of the 20 nullifications involved rules finalized at the end of a previous administration that were nullified at the beginning of a new administration with a majority in both chambers of Congress. That is the case for the Marine Archaeology Rule, which was published at the end of the Biden administration and nullified at the beginning of the Trump administration. .

The nullified OCS rule required operators to submit an archaeological report identifying potential archaeological resources with any exploration or development plan. The rule modified regulations that only required such a report only when a BOEM regional director had reason to believe that an archaeological resource may be present in the lease area. 

Archaeological survey requirements have been somewhat contentious since they were introduced in the 1970s. There were concerns about decisions to require the protection of speculative, low probability sites that could significantly alter operating plans.

A reasonable balance and an apparent consensus was achieved by limiting the report requirements to areas where studies and other information indicated the potential for such resources. BOEM’s new rule tightened the requirement considerably, which led to opposition and ultimately nullification.

Resolution Timeline