Congressional Review Act: Rules Not Submitted to GAO and Congress

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Congressional Review Act: Rules Not

Submitted to GAO and Congress

Curtis W. Copeland

Specialist in American National Government

December 29, 2009

Congressional Research Service

7-5700

www.crs.gov

R40997

CRS Report for Congress

Prepared for Members and Committees of Congress

Congressional Review Act: Rules Not Submitted to GAO and Congress

Summary

The Congressional Review Act (CRA; 5 U.S.C. §§801-808) was enacted to improve

congressional authority over agency rulemaking, and 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. GAO periodically compares the list of rules that are submitted to it

with the rules that are published in the Federal Register to determine whether any covered rules

have not been submitted.

Between 1999 and 2009, GAO sent the Office of Information and Regulatory Affairs (OIRA)

within the Office of Management and Budget at least five letters listing more than 1,000

substantive final rules that GAO said it had not received. In each of those letters, GAO

encouraged OIRA to use the information to ensure that the agencies complied with the CRA. The

most recent of these letters was sent to OIRA in May 2009, and listed 101 substantive rules that

were published during FY2008 that GAO said had not been submitted. The missing rules were

issued by different agencies, including the Departments of Agriculture, Commerce,

Transportation, and Homeland Security. The topics covered by these rules varied, and included

chemical facility anti-terrorism standards, designation of critical habitats for endangered species,

the administration of direct farm loan programs, oil and gas lease operations, and changes to

workplace drug and alcohol programs. As of October 26, 2009, 99 of the 101 rules had still not

been submitted to GAO and to both houses of Congress. OIRA sent an e-mail to federal agencies

in November 2009 telling them to contact GAO regarding these missing rules. In the following

week, several of the rules were submitted to GAO, and more than a dozen other rules were

submitted in the following month. Also, CRS determined that 22 significant rules that were

published in the Federal Register between October 2008 and July 2009 were not listed in GAO’s

database as of mid-November 2009.

H.R. 2247, which was passed by the House of Representatives on June 16, 2009, and is currently

before the Senate Committee on Homeland Security, would amend the CRA and eliminate the

requirement that federal agencies submit their rules to Congress before they can take effect. The

rules would still have to be submitted to GAO, and GAO would be required to submit to each

house of Congress a weekly report containing a list of the rules received.

Congress may conclude that enactment of this legislation will improve agencies’ ability and

willingness to submit their covered rules, or that this is an administrative issue that should be

resolved between GAO, OIRA, and the rulemaking agencies. Alternatively, Congress could

require OIRA or GAO to take additional actions to ensure compliance with the CRA’s reporting

requirements. Congress could also require GAO to provide a copy of its CRA compliance reports

to Congress, publish the reports in the Federal Register, or both.

This report will be updated to reflect subsequent legislative or other developments.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

Contents

Introduction ................................................................................................................................1

Background ................................................................................................................................2

Covered Rules.......................................................................................................................3

Legislative History of the Rule Submission Requirement ......................................................4

Post-Enactment Joint Statement ......................................................................................5

OMB Guidance on the Rule Submission Requirements .........................................................6

GAO Opinion on the CRA and the Effective Date of a Rule ..................................................7

Early GAO Reviews Determined That Some Covered Rules Were Not Being Submitted .............7

GAO Has Repeatedly Notified OIRA That All Rules Were Not Being Submitted.........................9

GAO’s May 2009 Letter to OIRA ....................................................................................... 10

Agencies and Issues ...................................................................................................... 11

Submission of Missing Rules After GAO’s May 2009 Letter ......................................... 14

Congress Did Not Receive Most of the FY2008 Missing Rules ..................................... 15

OIRA’s Actions in November 2009 and Agencies’ Response ......................................... 15

FY2009 Significant Rules Not Received by GAO ..................................................................... 16

Related Legislation in the 111th Congress .................................................................................. 20

Analysis.................................................................................................................................... 21

Congressional Options .............................................................................................................. 22

Figures

Figure A-1. GAO’s May 2009 Letter to OIRA........................................................................... 24

Figure A-2. Enclosure to GAO’s May 2009 Letter to OIRA Listing 101 Missing Rules

During FY2008...................................................................................................................... 25

Tables

Table 1. Number of Substantive Final Rules Not Received by GAO, FY2008............................ 11

Table 2.Significant Final Rules Reviewed by OIRA from October 2008 Through June

2009 and Not Received at GAO ............................................................................................. 17

Appendixes

Appendix. GAO Documents...................................................................................................... 24

Contacts

Author Contact Information ...................................................................................................... 29

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Introduction

On November 20, 2007, the Department of Homeland Security (DHS) published a final rule

entitled “Appendix to Chemical Facility Anti-Terrorism Standards.”1 Publication of this rule

marked a significant step in a multi-year policy process that began in the wake of the terrorist

attacks of September 11, 2001.2 Section 550 of the Department of Homeland Security

Appropriations Act of 2007 (P.L. 109-295, October 4, 2006) required the Secretary of DHS to

issue final regulations establishing “risk-based performance standards for security of chemical

facilities” by April 2007. In December 2006, DHS issued an advance notice of proposed

rulemaking, which sought comment on a range of issues.3 On April 9, 2007, DHS issued an

interim final rule that required covered chemical facilities to prepare “security vulnerability

assessments” and “site security plans” that satisfy the new risk-based performance standards.4

The interim final rule went into effect on June 8, 2007, except for an appendix containing a

tentative list of “chemicals of interest” (COIs). DHS took comments from the public on the list,

and published the November 2007 rule making the list final. The final rule also, among other

things, (1) adjusted the “screening threshold quantities” (STQs) for certain COIs; (2) defined the

specific security issue or issues implicated by each COI, (3) established different STQs for COIs

based upon the security issue presented, and (4) added provisions that instructed facilities on how

to calculate the quantities of COIs that they have in their possession. DHS said that the changes in

the appendix “will assist the Department in more precisely identifying facilities that may be

designated as high risk, while reducing the burden on facilities that possess chemicals in smaller

amounts.”5

The rule was published with an effective date of November 20, 2007, and has been implemented

since that date. 6 However, DHS did not comply with a statutory provision commonly known as

the Congressional Review Act (CRA; 5 U.S.C. §§801-808), which requires each federal agency

to send its covered final rules to the Comptroller General at the Government Accountability

Office (GAO) and to both houses of Congress “[b]efore [such rules] can take effect.”7 As of

U.S. Department of Homeland Security, “Appendix to Chemical Facility Anti-Terrorism Standards,” 72 Federal

For detailed information on this issue, see CRS Report R40695, Chemical Facility Security: Reauthorization, Policy

Issues, and Options for Congress, by Dana A. Shea.

U.S. Department of Homeland Security, “Chemical Facility Anti-Terrorism Standards,” 71 Federal Register 78276,

December 28, 2006.

U.S. Department of Homeland Security, “Chemical Facility Anti-Terrorism Standards,” 72 Federal Register 17688,

April 9, 2007.

U.S. Department of Homeland Security, “Appendix to Chemical Facility Anti-Terrorism Standards,” 72 Federal

For example, in an October 1, 2009, statement for the record provided to the Subcommittee on Energy and

Environment, House Committee on Energy and Commerce, Rand Beers, Under Secretary for the National Protection

and Programs Directorate said (pp. 4-5) “In May, the Department issued approximately 140 final tiering determination

letters to the highest risk (Tier 1) facilities, confirming their high-risk status and initiating their 120-day time frame for

submitting [a Site Security Plan, SSP]. In June and July, we notified approximately 826 facilities of their status as final

Tier 2 facilities and the associated due dates for their SSPs. Most recently, on August 31, 2009, we notified

approximately 137 facilities of their status as either a final Tier 1, 2, or 3 facility and the associated due dates for their

respective SSPs. Following preliminary authorization of the SSPs, the Department expects to begin performing

inspections in the first quarter of FY 2010, starting with the Tier 1-designated facilities.” To view a copy of this

testimony, see http://energycommerce.house.gov/Press_111/20091001/beers_testimony.pdf.

5 USC §801(a)(1)(A).

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November 20, 2009—two years after the rule was published—neither GAO nor Congress had

received the rule.

This report discusses the CRA requirement that federal agencies send their final rules to GAO and

Congress before they can take effect, and notes that agencies have not done so more than 1,000

times in recent years. It also discusses the legislative history of the act regarding CRA rule

submission, describes current legislation related to this issue, and presents other options that

Congress could consider.

Background

The CRA was included as part of the Small Business Regulatory Enforcement Fairness Act

(SBREFA; Title II of P.L. 104-121, 5 U.S.C. §601 note), which was signed into law on March 29,

1996. The act established expedited legislative procedures (primarily in the Senate) by which

Congress may disapprove agencies’ final rules by enacting a joint resolution of disapproval. The

enactment of the CRA was an attempt to reestablish a measure of congressional authority over

rulemaking. As Senator Don Nickles, one of the sponsors of the legislation, said shortly after the

CRA was enacted,

As more and more of Congress’ legislative functions have been delegated to federal

regulatory agencies, many have complained that Congress has effectively abdicated its

constitutional role as the national legislature in allowing federal agencies so much latitude in

implementing and interpreting congressional enactments. In many cases, this criticism is

well founded. Our constitutional scheme creates a delicate balance between the appropriate

roles of the Congress in enacting laws, and the Executive Branch in implementing those

laws. This legislation will help to redress the balance, reclaiming for Congress some of its

policymaking authority, without at the same time requiring Congress to become a super

regulatory agency.8

As the first step in the congressional disapproval process, the CRA generally requires federal

agencies to submit their covered final rules to both houses of Congress and GAO before they can

take effect. Specifically, the first sentence of the CRA (Section 801(a)(1)(A)) states that,

Before a rule can take effect, the Federal agency promulgating such rule shall submit to each

House of the Congress and to the Comptroller General a report containing—(i) a copy of the

rule; (ii) a concise general statement relating to the rule, including whether it is a major rule;

and (iii) the proposed effective date of the rule.9

The CRA delays the effective dates of “major rules” even further—until 60 days after the date

that the rules are published in the Federal Register or submitted to Congress, whichever is later.10

The CRA defines a “major rule” as

any rule that the Administrator of the Office of Information and Regulatory Affairs of the

Office of Management and Budget finds has resulted in or is likely to result in—(A) an

Joint statement of House and Senate Sponsors, 142 Cong. Rec. S3683, at S3686 (daily ed. April 18, 1996), at 142

Cong. Rec. S3683.

5 U.S.C. §801 (a)(1)(A).

5 U.S.C. §801(a)(3).

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annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or

prices for consumers, individual industries, Federal, State, or local government agencies, or

geographic regions; or (C) significant adverse effects on competition, employment,

investment, productivity, innovation, or on the ability of United States-based enterprises to

compete with foreign-based enterprises in domestic and export markets. The term does not

include any rule promulgated under the Telecommunications Act of 1996 and the

amendments made by that Act.

The CRA also states that all non-major rules “shall take effect as otherwise provided by law after

submission to Congress under paragraph (1).”11 However, Section 808 states that,

Notwithstanding section 801—(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 therefor 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.

The “good cause” language in the second category of rules refers to an exception to the notice

and comment rulemaking requirement in the Administrative Procedure Act (APA), which allows

agencies to publish final rules without previously seeking comments from the public on an earlier

proposed rule.12 Interim final and direct final rules are considered particular applications of the

APA’s good cause exception.13

The issue of whether a court may prevent an agency from enforcing a covered rule that was not

reported to Congress has not been resolved conclusively.14

Covered Rules

Section 804(3) of the CRA generally defines a covered “rule” by referring to the definition in

Section 551 of the APA, which says that a rule is

the whole or a part of an agency statement of general or particular applicability and future

effect designed to implement, interpret, or prescribe law or policy or describing the

organization, procedure, or practice requirements of an agency and includes the approval or

5 U.S.C. §801(a)(4).

See 5 U.S.C. §553(b)(3)(B). When agencies use the good cause exception, the act requires that they explicitly say so

and provide a rationale for the exception’s use when the rule is published in the Federal Register. A federal agency’s

invocation of the good cause exception (or other exceptions to notice and comment procedures) is subject to judicial

review.

Direct final rulemaking involves agency publication of a rule in the Federal Register with a statement that the rule

will be effective on a particular date unless an adverse comment is received within a specified period of time (e.g., 30

days). However, if an adverse comment is filed, the direct final rule is withdrawn and the agency may publish the rule

as a proposed rule under normal notice and comment procedures. In interim final rulemaking, an agency issues a final

rule without a prior notice of proposed rulemaking that is generally effective immediately, but with a postpromulgation opportunity for the public to comment. If the public comments persuade the agency that changes are

needed in the interim final rule, the agency may revise the rule by publishing a final rule reflecting those changes.

For an analysis of the legal uncertainty adhering to an agency’s failure to report a covered rule to Congress, see CRS

Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of The Congressional

Review Act after a Decade, by Morton Rosenberg, pp. 28-34.

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prescription for the future of rates, wages, corporate or financial structures or reorganizations

thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs,

or accounting, or practices bearing on any of the foregoing.15

The CRA does, however, exclude certain types of rules from its coverage:

(A) any rule of particular applicability, including a rule that approves or prescribes for the

future rates, wages, prices, services, or allowances therefor, corporate or financial structures,

reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures

bearing on any of the foregoing; (B) any rule relating to agency management or personnel; or

the rights or obligations of non-agency parties.16

These limits notwithstanding, the scope of the CRA is extremely broad, including rules that are

exempt from notice-and-comment rulemaking procedures (e.g., interpretive rules, statements of

policy, and rules that are considered “proprietary” or that fall under the “military” or “foreign

affairs” exemptions in the APA). 17 As noted in an earlier CRS report,

The legislative history of the CRA emphasizes that by adoption of the Section 551(4)

definition of rule, the review process would not be limited only to coverage of rules required

to comply with the notice and comment provisions of the APA or any other statutorily

required variations of notice and comment procedures, but would rather encompass a wider

spectrum of agency activities characterized by their effect on the regulated public: “The

committee’s intent in these subsections is ... to include matters that substantially affect the

rights or obligations of outside parties. The essential focus of this inquiry is not on the type

of rule but on its effect on the rights and obligations of non-agency parties.”18

Legislative History of the Rule Submission Requirement

The limited contemporaneous legislative history of the CRA suggests that the drafters of the

legislation intended that virtually all covered final rules be submitted to Congress before they

could take effect. A key sponsor of the legislation, Representative David McIntosh, explained

during the floor debate on the bill that would become the CRA (H.R. 3136 in the 104th Congress)

that “Under Section 8(a)(1)(A), covered rules may not go into effect until the relevant agency

submits a copy of the rule and an accompanying report to both Houses of Congress.”19 The same

day, Senator Don Nickles, another sponsor of the bill, said that “Upon issuing a final rule, a

Federal agency must send to Congress and GAO a report containing a copy of the rule.”20

5 U.S.C. §551(4).

5 U.S.C. §804 (3)(A-C).

Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 4th ed., (Chicago, IL: 2006), p. 187.

CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of The

Congressional Review Act after a Decade, by Morton Rosenberg, p. 21, quoting the joint statement of House and

Senate sponsors, 142 Cong. Rec. E571 at E579, and 142 Cong. Rec. S3683 at S3687.

142 Cong. Rec. H3005 (daily ed. March 28, 1996).

142 Cong. Rec. S3120 (daily ed. March 28, 1996).

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Post-Enactment Joint Statement

Shortly after the CRA was enacted, the principal Senate and House sponsors of the bill published

a joint statement in the Congressional Record providing a detailed explanation of the CRA’s

provisions and its legislative history. Senator Nickles explained that, because the legislation did

not go through the committee process, virtually “no other expression of its legislative history

exists.” He went on to say that “[t]his joint statement is intended to provide guidance to the

agencies, the courts, and other interested parties when interpreting the act’s terms.”21 (The Justice

Department has suggested that such post-enactment legislative history should not carry any

weight.22 Similarly, the Supreme Court has said that “less formal types of subsequent legislative

history provide an extremely hazardous basis for inferring the meaning of a congressional

enactment.”23 On the other hand, the Supreme Court has also described post-enactment

statements by legislative sponsors as an “authoritative guide to the statute’s construction.”24)

With regard to the rule submission requirement in the CRA, the sponsors’ joint statement said that

“any covered rule not submitted to Congress and the Comptroller General will remain ineffective

until it is submitted pursuant to subsection 801(a)(1)(A).”25 The only exception to this

requirement was in Section 808 of the act, which says that certain rules (i.e., rules related to

hunting, fishing, and camping, and for which the agency invokes the “good cause” exception to

notice and comment) can take effect when the promulgating agency determines. The joint

statement said that even these rules must be submitted to GAO and Congress “as soon as

practicable after promulgation,” and the congressional review period would not begin until they

are submitted.

Section 805 of the CRA states that “No determination, finding, action, or omission under this

chapter shall be subject to judicial review.” The joint statement said that this provision meant that

“the major rule determinations made by the Administrator of the Office of Information and

Regulatory Affairs of the Office of Management and Budget are not subject to judicial review.

Nor may a court review whether Congress complied with the congressional review procedures in

this chapter.” The joint statement went on to say that “The limitation on judicial review in no way

prohibits a court from determining whether a rule is in effect. For example, the authors expect

that a court might recognize that a rule has no legal effect due to the operation of subsections

801(a)(1)(A) or 801(a)(3).”26

Joint statement of House and Senate Sponsors, 142 Cong. Rec. E571, at E577 (daily ed. April 19, 1996); 142 Cong.

Rec. S3683, at S3686 (daily ed. April 18, 1996), at 142 Cong. Rec. S3683.

See letter dated June 11, 1997 to the Honorable Lamar Smith, Chairman, Subcommittee on Immigration and Claims,

Senate Judiciary Committee, from Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, DOJ, and

accompanying analysis dated June 10, 1997, at 10 n.14.

Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102 (1980). In this case, the “subsequent

legislative history” was a conference report for legislation that was being considered after the enactment of an earlier

statute.

See, for example, North Haven Bd. of Education v. Bell, 456 U.S. 512, 526-27 (1982) (citing a bill summary placed in

the Congressional Record by the bill’s sponsor after passage, and explanatory remarks made two years later by the

same sponsor); Pacific Gas & Electric Co. v. Energy Resources Conservation and Development Commission, 461 U.S.

190, 211 n. 23 (1983)(relying on a 1965 explanation by “an important figure in the drafting of the 1957 [Atomic

Energy Act]”); and Grove City College v. Bell, 465 U.S. 555, 567 (1984) (remarks of sponsors deemed authoritative

when they are consistent with the language of the legislation).

Joint statement of House and Senate Sponsors, 142 Cong. Rec. S3683, at S3684 (daily ed. April 18, 1996).

Ibid, at S3686.

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OMB Guidance on the Rule Submission Requirements

In 1998, as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act

for 1999, Congress directed the Office of Management and Budget (OMB) to issue guidance on

certain requirements in the CRA, including the requirements in Section 801(a)(1) regarding the

submission of rules.27 On January 12, 1999, the Director of OMB issued a memorandum to the

heads of federal departments and agencies on “Submission of Rules under the Congressional

Review Act” in which he noted that the CRA requires agencies to submit each new final rule to

both houses of Congress and to GAO “before the rule can take effect.”28 The memorandum also

included a form that OMB and GAO developed to facilitate the submission of agency rules.

On March 30, 1999, the OMB Director issued another memorandum to the heads of federal

departments and agencies on “Guidance for Implementing the Congressional Review Act.”29 In

that guidance, OMB said that “In order for a rule to take effect, you must submit a report to each

House of Congress and GAO containing the following: a copy of the rule; a concise general

statement related to the rule, including whether the rule is a ‘major rule;’ and the proposed

effective date of the rule.” According to OMB, this guidance is still in effect.30

Also included in the March 1999 OMB guidance was a modified version of the rule submission

form previously provided to the agencies. 31 Among other things, the current version of the form

asks agencies to identify the priority level of each rule—i.e., whether it is (1) “economically

significant,” “significant,” or “substantive”; or is (2) “routine and frequent” or

“informational/administrative” in nature. 32 The form also asks agencies to identify whether or not

each rule is a “major rule” as that term is defined in the CRA. When agencies submit rules to

GAO, GAO enters them into a publicly available database that it maintains on its website.33 As of

September 30, 2009, GAO said it had received a total of 52,708 final rules since the CRA was

enacted, of which 865 were considered “major” rules.34

P.L. 105-277, 112 Stat. 2681-495, October 21, 1998.

OMB Memorandum M-99-07, January 12, 1999, available from the author.

OMB Memorandum M-99-13, March 30, 1999, available from the author.

E-mail from Steven D. Aitken, Deputy General Counsel, OMB, November 9, 2009, available from the author.

The current GAO rule submission form is available at http://www.gao.gov/decisions/majrule/fedrule2.pdf.

Executive Order 12866 defines a “significant” regulatory action as any such action “that is likely to result in a rule

that may: Have an annual effect on the economy of $100 million or more or adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities; Create a serious inconsistency or otherwise interfere with an action taken

or planned by another agency; Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs

or the rights and obligations of recipients thereof; or Raise novel legal or policy issues arising out of legal mandates,

the President’s priorities, or the principles set forth in this Executive order.” “Economically significant” rules meet the

first of these four criteria. “Substantive” rules are defined in the Unified Agenda of Federal Regulatory and

Deregulatory Actions as rules that are not “significant,” but also not routine and frequent or informational in nature.

The GAO rules database can be accessed at http://www.gao.gov/fedrules/.

E-mail from Sabrina Streagle, GAO Office of the General Counsel, October 6, 2009. GAO’s database indicates that

GAO had received a total of 46,992 rules as of September 30, 2009, but GAO said that about 5,700 rules were received

before the database was established.

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GAO Opinion on the CRA and the Effective Date of a Rule

GAO has said on numerous occasions that covered rules cannot take effect until the rules are

submitted to it and to both houses of Congress, and GAO has provided Congress with at least

nine legal opinions regarding whether certain agency actions constitute covered rules. 35 Although

GAO has not provided Congress with a legal opinion regarding whether a particular missing nonmajor rule could take effect, the agency has provided at least one legal opinion regarding when a

major rule can take effect. On January 18, 2002, the Centers for Medicare and Medicaid Services

within the Department of Health and Human Services (HHS) published a final rule in the Federal

Non-State Government-Owned or Operated Hospitals,” which was scheduled to take effect on

March 19, 2002.36 However, the House of Representatives did not receive the rule until February

14, 2002, and the Senate did not receive the rule until March 15, 2002. Because the rule was

considered a major rule, the CRA says it could not take effect for 60 days from the date of

publication in the Federal Register or receipt of the rule by Congress, whichever is later.37

Therefore, by setting the effective date for March 19, 2002, the rule did not have the required 60day delay in its effective date. In an April 5, 2002, letter to Senator Edward Kennedy, GAO said,

While section 801(a)(3)(A) uses the phrase “receipt of the rule by Congress” in beginning

the computation of the 60-day delay provision, section 801(a)(1)(A) requires that “Before a

rule can take effect, the Federal agency promulgating such rule shall submit to each House of

Congress and the Comptroller General a report ….”

Section 801(a)(1)(A) makes clear that compliance with the requirements of the CRA

necessitates submission of a rule to both Houses of Congress. Therefore, in this instance, the

start of the 60-day delay period would have been March 15, 2002, the date of receipt by the

Senate. Accordingly, we find that the Medicaid rule should not be effective under the

provisions of the CRA until May 14, 2002.38

Early GAO Reviews Determined That Some

Covered Rules Were Not Being Submitted

Although it was not required to do so, 39 in 1997, GAO conducted a review to determine whether

all of the rules that were published in the Federal Register from October 1, 1996, to July 31,

For a synopsis of these cases, see CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update

and Assessment of The Congressional Review Act after a Decade, by Morton Rosenberg, pp. 22-23.

U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program;

Modification of the Medicaid Upper Payment Limit for Non-State Government-Owned or Operated Hospitals,” 67

Federal Register 2602, January 18, 2002.

5 U.S.C. §801(a)(3)(A). On March 19, 2002, HHS published a notice in the Federal Register delaying the effective

date of the Medicaid rule until April 15, 2002, in what GAO characterized as an attempt to comply with the CRA. See

U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program;

Modification of the Medicaid Upper Payment Limit for Non-State Government-Owned or Operated Hospitals: Delay of

Effective Date,” 67 Federal Register 12479, March 19, 2002.

This letter is available at http://www.gao.gov/decisions/other/289880.htm.

GAO’s only responsibility in the CRA (other than to receive rules that agencies are required to submit to it) is to

write a report on each “major” rule within 15 calendar days of the date that it is submitted. 5 U.S.C §801(a)(2)(A).

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1997, had been submitted to Congress and GAO. 40 GAO ultimately concluded that 279 covered

rules published during this 10-month period had not been submitted, and in November 1997

provided a list of these rules to the Office of Information and Regulatory Affairs (OIRA) within

OMB.41 GAO said that OIRA distributed this list to the affected agencies and told them to contact

GAO if they had any questions.

In February 1998, because many of the rules remained unfiled, GAO said that it followed up with

each agency that still had missing rules. In March 1998 testimony before the Subcommittee on

National Economic Growth, Natural Resources, and Regulatory Affairs, House Committee on

Government Reform and Oversight, GAO said that 264 of the 279 rules had been submitted.

GAO also said the following:

We do not know if OIRA ever followed up with the agencies to ensure compliance with the

filing requirement; we do know that OIRA never contacted GAO to determine if all rules

were submitted as required.... In our view, OIRA should have played a more proactive role in

ensuring that agencies were both aware of the CRA filing requirements and were complying

with them.42

Some rulemaking agencies took what GAO characterized as “immediate and corrective action” in

response to this review. 43 For example, on January 7, 1998, the Environmental Protection Agency

(EPA) published nine final rules in the Federal Register changing the effective dates of rules that

had not been submitted in accordance with the requirements in Section 801(a)(1)(A) of the CRA.

In each of the rules, EPA noted that the CRA precludes a rule from taking effect until it is

submitted to GAO and each house of Congress, and said that EPA had inadvertently failed to do

so with regard to the subject rules. Although each of the rules had a designated effective date,

EPA said “by operation of law, the rule did not take effect” on that date. After EPA discovered

what it characterized as “its error,” the agency submitted the rules as required and amended the

effective dates “consistent with the provisions of the CRA.”44

GAO conducted a second review of agencies’ compliance with the CRA in June 1998, and

reported that 66 covered rules published during the five-month period from August 1, 1997, to

December 31, 1997, had not been submitted. 45 GAO submitted the list of rules to OIRA, and

U.S. General Accounting Office, Congressional Review Act: Implementation and Coordination, GAO/T-OGC-9838, March 10, 1998, pp. 2-3.

GAO initially concluded that 498 rules had not been submitted, but later concluded that 182 were not covered rules

(e.g., because they were rules of particular applicability or agency management) and that 37 rules had, in fact, been

submitted. OIRA was created by the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35), and currently is

responsible for reviewing the substance of hundreds of regulations each year pursuant to Executive Order 12866. For

more information, see CRS Report RL32397, Federal Rulemaking: The Role of the Office of Information and

Regulatory Affairs, by Curtis W. Copeland.

U.S. General Accounting Office, Congressional Review Act: Implementation and Coordination, GAO/T-OGC-9838, March 10, 1998, p. 3.

Ibid.

See, for example, U.S. Environmental Protection agency, “Technical Amendments to Benzidine-Based Chemical

Substances; Significant New Uses of Certain Chemical Substances: Correction of Effective Date Under Congressional

Review Act (CRA),” 63 Federal Register 673, January 7, 1998. Corrections of effective dates for eight other rules were

on pages 682-691 of the same edition of the Federal Register.

U.S. General Accounting Office, Congressional Review Act: Update on Implementation and Coordination, GAO/TOGC-98-55, June 17, 1998, p. 3. GAO initially said that 115 rules had not been submitted, but later concluded that 25

were not covered rules and 24 had already been submitted.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

OIRA reportedly agreed to follow up with the agencies—which caused GAO to note that OIRA

appeared to have “become more involved” in the correction effort.

In December 1998, GAO published a notice in the Federal Register identifying “rules published

by Federal agencies in the Federal Register that were not received by [GAO] prior to the

announced effective dates.”46 The notice included all final and interim final rules covered by the

CRA that were issued between October 1, 1996, and December 31, 1997. GAO reported that

more than 300 non-major rules published during this period were not submitted to GAO prior to

their effective dates. The Departments of Agriculture and Transportation, and the Federal

Emergency Management Agency, issued about 60% of the rules that had not been submitted.47 By

the date of GAO’s Federal Register notice (nearly one year after the end of the time period

covered by the review), GAO said that it had received all of the rules.

GAO Has Repeatedly Notified OIRA That All Rules

Were Not Being Submitted

GAO has continued to compare its list of rules that agencies submit to the Comptroller General

with the list of rules that are published in the Federal Register to determine whether any covered

rules had not been submitted. However, GAO has not published a notice in the Federal Register

delineating those missing rules since 1998.48 Instead, GAO periodically sent letters to OIRA

regarding the substantive rules that it had not received.49 See the following examples:

•

On September 21, 1999, GAO sent a letter to the Deputy Administrator of OIRA

identifying 31 substantive regulations that were published in the Federal Register

during calendar year 1998 that “have not been filed with us and, presumably,

have also not been filed with the Congress.”50

•

On July 3, 2003, GAO sent a similar letter to the Deputy Administrator of OIRA

identifying 322 substantive regulations that were published during calendar years

2001 and 2002 but had not been filed with GAO. 51

•

On March 21, 2005, GAO sent another letter to the Deputy Administrator of

OIRA identifying 460 substantive regulations that were published during

calendar years 2003 and 2004 but were not filed with GAO. 52

U.S. General Accounting Office, “Federal Agency Rules Filed Under Congressional Review Act Following General

Accounting Office Review of Unfiled Rules,” 63 Federal Register 71672, December 29, 1998. Until 2004, GAO was

the General Accounting Office.

The Department of Agriculture rules were primarily issued by the Federal Crop Insurance Corporation. The

Department of Transportation rules were primarily issued by the Federal Aviation Administration. The Federal

Emergency Management Agency’s rules primarily involved flood elevation determinations.

GAO said that continuing to publish the notices in the Federal Register was “not cost effective.” E-mail from Shirley

Jones, Assistant General Counsel, Government Accountability Office, November 13, 2009, available from the author.

GAO said that the lists of rules that it provided to OIRA were “substantive” in that they did not include items such as

technical amendments to regulations that are printed in the Federal Register.

Letter from Kathleen E. Wannisky, Associate General Counsel for Operations, GAO, to Donald R. Arbuckle, Deputy

Administrator, OIRA, September 21, 1999, available from the author.

Letter from Kathleen E. Wannisky, Managing Associate General Counsel, GAO, to Donald R. Arbuckle, Deputy

Administrator, OIRA, July 3, 2003, available from the author.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

•

On May 27, 2008, GAO sent another letter to the Administrator of OIRA

identifying 116 substantive regulations that were published during fiscal year

(FY) 2007 but “have not been submitted to us as required by Section

801(a)(1)(A).”53

In each of these letters, GAO noted the rule submission requirement in Section 801(a)(1)(A) of

the CRA, and said “We trust that your office will use this information to ensure that executive

agencies fully comply with [CRA] requirements by filing regulations with both the Congress and

GAO.”54 GAO officials said that OIRA did not respond to GAO with regard to any of these

letters, and GAO and OIRA officials said they were not aware of any effort by OIRA to contact

federal agencies regarding the missing rules during the time periods covered by these letters.55

GAO’s May 2009 Letter to OIRA

In the most recent letter on this issue, GAO notified the Acting Administrator of OIRA on May

26, 2009, that “a number of regulations have not been submitted to us as required by section

801(a)(1)(A) [of the CRA].”56 Enclosed with the letter was a list of 101 substantive rules that

were published in the Federal Register during FY2008 (i.e., October 1, 2007, through September

30, 2008) and that had not been submitted to GAO. Copies of that letter and the enclosed list of

rules are provided as Figure A-1 and Figure A-2 in an Appendix at the end of this report. Taken

together, the five GAO-OIRA letters covered seven one-year periods between 1998 and 2008, and

listed 1,030 substantive rules that were published in the Federal Register were not submitted to

GAO – an average of nearly 150 rules per year.

GAO said it did not send copies of any of these letters to congressional committees responsible

for oversight of the CRA, the administrative offices within each house of Congress that typically

receives rules from the agencies (i.e., the House Parliamentarian and the Secretary of the Senate),

or anyone else in Congress.57 GAO officials noted that it was not statutorily required to notify

Congress about this issue, but said GAO did mention that it had identified missing rules as part of

congressional testimony regarding the CRA in recent years.58

(...continued)

Letter from Kathleen E. Wannisky, Managing Associate General Counsel, GAO, to Donald R. Arbuckle, Deputy

Administrator, OIRA, March 21, 2005, available from the author.

Letter from Robert J. Cramer, Associate General Counsel, GAO, to Susan E. Dudley, Administrator, OIRA, May 27,

2008, available from the author.

GAO said that it sent other letters and lists of rules to OIRA for other years between 1998 and 2008, but could not

provide copies of those documents to CRS. GAO provided a copy of an April 10, 2001, letter to OIRA, but a

referenced list of unfiled substantive rules (covering the period from January 1, 2000, through December 31, 2000) was

not included.

Telephone conversations with GAO and OIRA officials, November 2009. One former OIRA official said he had a

vague recollection of contacting federal agencies and telling them to submit missing rules, but he could not provide any

details. Telephone conversation with Donald Arbuckle, November 9, 2009.

Letter from Robert J. Cramer, Managing Associate General Counsel, GAO, to Kevin F. Neyland, Acting

Administrator, OIRA, May 26, 2009, available from the author.

E-mail from Shirley Jones, Assistant General Counsel, Government Accountability Office, November 13, 2009,

available from the author.

For example, GAO noted that in a November 2007 statement for the record, GAO’s former General Counsel said that

“GAO has conducted yearly reviews to determine whether all final rules covered by CRA and published in the Federal

(continued...)

Congressional Research Service

Congressional Review Act: Rules Not Submitted to GAO and Congress

Agencies and Issues

As indicated in Table 1 below, the missing rules from FY2008 were issued by many different

federal departments and agencies. However, the Departments of Agriculture, Commerce,

Defense, Homeland Security, and Transportation, as well as the General Services Administration,

each had more than five missing rules.

Table 1. Number of Substantive Final Rules Not Received by GAO, FY2008

Department/Agency

Number of Rules Not Received

Department of Agriculture (USDA)

Department of Commerce (DOC)

Department of Defense (DOD)

Department of Health and Human Services (HHS)

Department of Homeland Security (DHS)

Department of Housing and Urban Development (HUD)

Department of the Interior (DOI)

Department of State (DOS)

Department of Transportation (DOT)

Department of the Treasury

Department of Veterans Affairs (DVA)

Executive Office of the President (EOP)

General Services Administration (GSA)

Peace Corps

Pension Benefit Guarantee Corporation

Small Business Administration

Other agencies (one rule each)

Total

101

Source: Letter from GAO to OIRA, May 24, 2009 (see Figures A-1 and A-2 in the Appendix to this report).

The subjects covered by the 101 missing rules from FY2008 were also varied. In addition to the

previously mentioned November 2007 DHS rule on chemical facility security, the missing rules

included the following:

•

An October 2007 rule that was issued by the Food and Nutrition Service within

USDA on “Procurement Requirements for the National School Lunch, School

(...continued)

Federal Register the previous year that have not been filed with our Office.” U.S. Government Accountability Office,

Congressional Review Act, GAO-08-268T, November 6, 2007, p. 3. See also U.S. Government Accountability Office,

Federal Rulemaking: Perspectives on 10 Years of Congressional Review Act Implementation, GAO-06-601T, March

30, 2006, p. 4, in which GAO said that “roughly 200 nonmajor rules per year [are] not filed with our office.”

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Congressional Review Act: Rules Not Submitted to GAO and Congress

Breakfast and Special Milk Programs.”59 According to the rule summary, it

makes “changes in a school food authority’s responsibilities for proper

procurement procedures and contracts, limits a school food authority’s use of

nonprofit school food service account funds to costs resulting from proper

procurements and contracts, and clarifies a State agency’s responsibility to

review and approve school food authority procurement procedures and

contracts.”60

•

An October 2007 rule that was issued by the Fish and Wildlife Service within

DOI on “Endangered and Threatened Wildlife and Plants; Designation of Critical

Habitat for the Guaj[oacute]n (Eleutherodactylus cooki).”61 According to the rule

summary, it designates critical habitat for the guajon (a rock frog endemic to

Puerto Rico) under the Endangered Species Act of 1973, as amended.

•

A November 2007 rule that was issued by the Farm Service Agency (FSA) within

USDA on “Regulatory Streamlining of the Farm Service Agency’s Direct Farm

Loan Programs.”62 According to the rule summary, it “simplifies and clarifies

FSA’s direct loan regulations; implements the recommendations of the USDA

Civil Rights Action Team; meets the objectives of the Paperwork Reduction Act

of 1995; and separates FSA’s direct Farm Loan Programs regulations from the

Rural Development mission area’s loan program regulations.”63

•

A December 2007 rule that was issued by the Equal Employment Opportunity

Commission (EEOC) on “Age Discrimination in Employment Act: Retiree

Health Benefits.”64 According to the rule summary, it allows employers to

“create, adopt, and maintain a wide range of retiree health plan designs, such as

Medicare bridge plans and Medicare wrap-around plans, without violating the

Age Discrimination in Employment Act of 1967 (ADEA). To address concerns

that the ADEA may be construed to create an incentive for employers to

eliminate or reduce retiree health benefits, EEOC is creating a narrow exemption

from the prohibitions of the ADEA for the practice of coordinating employersponsored retiree health benefits with eligibility for Medicare or a comparable

State health benefits program.”65

•

A December 2007 rule that was issued by the Office of Thrift Supervision (OTS)

within the Department of the Treasury on “Permissible Activities of Savings and

Loan Holding Companies.”66 One of the stated purposes of the rule is to “expand

U.S. Department of Agriculture, Food and Nutrition Service, “Procurement Requirements for the National School

Lunch, School Breakfast and Special Milk Programs, 72 Federal Register 61479, October 31, 2007.

Ibid., p. 61479.

U.S. Department of the Interior, Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants;

Designation of Critical Habitat for the Guaj[oacute]n (Eleutherodactylus cooki),” 72 Federal Register 60068, October

23, 2007.

U.S. Department of Agriculture, Farm Service Agency, “Regulatory Streamlining of the Farm Service Agency’s

Direct Farm Loan Programs,” 72 Federal Register 63242, November 8, 2007.

Ibid., p. 63242.

U.S. Equal Employment Opportunity Commission, “Age Discrimination in Employment Act: Retiree Health

Benefits,” 72 Federal Register 72938, December 26, 2007.

Ibid., p. 72938.

U.S. Department of the Treasury, Office of Thrift Supervision, “Permissible Activities of Savings and Loan Holding

Companies,” 72 Federal Register 72235, December 20, 2007.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

the permissible activities of savings and loan holding companies (SLHCs) to the

full extent permitted under the Home Owners’ Loan Act (HOLA).” The rule also

amended the agency’s existing requirements “to conform the regulation to the

statute that it is intended to implement, and to set forth standards that OTS will

use to evaluate applications submitted pursuant to the statutory application

requirement.”67

•

A February 2008 rule that was issued by the National Oceanic and Atmospheric

Administration (NOAA) within DOC on “Endangered and Threatened Species:

Final Threatened Listing Determination, Final Protective Regulations, and Final

Designation of Critical Habitat for the Oregon Coast Evolutionarily Significant

Unit of Coho Salmon.”68 According to the rule summary, it was a “final

determination to list the Oregon Coast coho salmon (Oncorhynchus kisutch)

evolutionarily significant unit (ESU) as a threatened species under the

Endangered Species Act (ESA).” The agency said it was “also issuing final

protective regulations and a final critical habitat designation for the Oregon Coast

coho ESU.”69

•

A February 2008 rule that was issued by the Bureau of Land Management (BLM)

within DOI on “Oil and Gas Leasing: National Petroleum Reserve – Alaska”

(NPR-A).70 According to the summary, the rule “amends the administrative

procedures for the efficient transfer, consolidation, segregation, suspension, and

unitization of Federal leases in the NPR-A. The rule also changes the way the

BLM processes lease renewals, lease extensions, lease expirations, lease

agreements, exploration incentives, lease consolidations, and termination of

administration for conveyed lands in the NPR-A. Finally, the rule makes the

NPR-A regulation on additional bonding consistent with the regulations that

apply outside of the NPR-A.”71

•

An April 2008 rule issued by NOAA’s National Marine Fisheries Service on

“Endangered and Threatened Species: Designation of Critical Habitat for North

Pacific Right Whale.”72 According to the rule summary, the “North Pacific right

whale was recently listed as a separate, endangered species, and because this was

a newly listed entity, we were required to designate critical habitat for it.”73

•

A June 2008 rule that was issued by the Office of the Secretary within DHS on

“Procedures for Transportation Workplace Drug and Alcohol Testing

Ibid, p. 72235.

U.S. Department of Commerce, National Oceanic and Atmospheric Administration, “Endangered and Threatened

Species: Final Threatened Listing Determination, Final Protective Regulations, and Final Designation of Critical

Habitat for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon,” 73 Federal Register 7816, February 11,

2008.

Ibid, p. 7816.

U.S. Department of the Interior, Bureau of Land Management, “Oil and Gas Leasing: National Petroleum Reserve –

Alaska,” 73 Federal Register 6430, February 4, 2008.

Ibid., p. 6430.

U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries

Service, “Endangered and Threatened Species; Designation of Critical Habitat for North Pacific Right Whale,” 73

Federal Register 19000, April 8, 2008.

Ibid., p. 19000.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

Programs.”74 According to the summary, the rule amends certain provisions of its

drug and alcohol testing procedures to “change instructions to collectors,

laboratories, medical review officers, and employers regarding adulterated,

substituted, diluted, and invalid urine specimen results. These changes are

intended to create consistency with specimen validity requirements established

by the U.S. Department of Health and Human Services and to clarify and

integrate some measures taken in two of our own Interim Final Rules. This Final

Rule makes specimen validity testing mandatory within the regulated

transportation industries.”75

•

A July 2008 rule that was issued by the Transportation Security Administration

within DHS on “False Statements Regarding Security Background Checks.”76

According to the rule summary, it codifies statutory provisions that “prohibit

public transportation agencies, railroad carriers, and their respective contractors

and subcontractors from knowingly misrepresenting Federal guidance or

regulations concerning security background checks for certain individuals.”77

•

September 2008 rule issued by the National Highway Traffic Safety

Administration (NHTSA) within DOT on “Nonconforming Vehicles Decided to

be Eligible for Importation.”78 According to the rule summary, it “revises the list

of vehicles not originally manufactured to conform to the Federal motor vehicle

safety standards (FMVSS) that NHTSA has decided to be eligible for

importation.”79

Submission of Missing Rules After GAO’s May 2009 Letter

CRS examined the GAO rules database on October 26, 2009, which indicated that GAO received

5 of the 101 missing rules after the date of the May 26, 2009, letter to OIRA:

•

A May 2008 DHS rule establishing a security zone around any vessel being

escorted by one or more Coast Guard, State, or local law enforcement assets

within the Captain of the Port Zone Jacksonville, Florida, which GAO received

on June 5, 2009.80

•

A June 2008 DOT rule clarifying the qualifications of individuals who certify by

signature the extended operations (ETOPS) pre-departure service check for

ETOPS flights operated by air carriers and in commuter and on-demand

passenger carrying operations, which GAO received on June 5, 2009.81

U.S. Department of Homeland Security, Office of the Secretary, “Procedures for Transportation Workplace Drug and

Alcohol Testing Programs, 73 Federal Register 35961, June 25, 2008.

Ibid., p. 35961.

U.S. Department of Homeland Security, Directorate of Border and Transportation Security, Transportation Security

Administration, “False Statements Regarding Security Background Checks,” 73 Federal Register 44665, July 31, 2008.

Ibid., p. 44665.

U.S. Department of Transportation, National Highway Traffic Safety Administration, “List of Nonconforming

Vehicles Decided to be Eligible for Importation,” 73 Federal Register 56741, September 30, 2008.

Ibid., p. 56741.

U.S. Department of Homeland Security, United States Coast Guard, “Security Zone; Escorted Vessels in Captain of

the Port Zone Jacksonville, FL,” 73 Federal Register 28707, May 19, 2008.

U.S. Department of Transportation, Federal Aviation Administration, “Extended operations (ETOPS) of Multi(continued...)

Congressional Research Service

Congressional Review Act: Rules Not Submitted to GAO and Congress

•

A July 2008 Federal Trade Commission rule describing biodiesel and biomassbased diesel automotive fuel labeling requirements, which GAO received on

October 4, 2009.82

•

An August 2008 DOT rule amending certain rating definitions and type

certification standards for rotorcraft turbine engines, which GAO received on

June 5, 2009.83

•

A September 2008 rule issued by the Department of the Treasury on “Risk Based

Capital Guidelines,” which GAO received on July 5, 2009.

The other 96 rules that were published during FY2008 that GAO said that it had not received

were still not listed in the GAO database as of October 26, 2009.

Congress Did Not Receive Most of the FY2008 Missing Rules

CRS also examined the House and Senate executive communication databases on October 26,

2009, which indicated that 80 of the 101 rules that GAO identified in its May 2009 letter to OIRA

had not been received by the House of Representatives, and 81 had not been received by the

Senate. 84 Even though 20 of the 101 rules on GAO’s list of missing rules had been submitted to

Congress, the CRA says they cannot take effect until they are submitted to GAO as well.

Of the five rules that were submitted to GAO after the May 2009 letter to OIRA, three of the rules

had not been submitted to either House of Congress as of October 26, 2009.85 Therefore, 99 of the

101 rules that were identified in GAO’s May 2009 letter to OIRA had not been submitted in all

three locations (i.e., both houses of Congress and GAO).

OIRA’s Actions in November 2009 and Agencies’ Response

On October 20, 2009, CRS provided the Deputy Administrator of OIRA with a copy of GAO’s

May 2009 letter and enclosure listing the 101 missing rules, and asked whether OIRA had taken

any action in response to that letter. OIRA officials initially told CRS that it had no record of

having received the May 2009 letter from GAO. 86 Subsequently, however, on November 12,

(...continued)

engine Airplanes,” 73 Federal Register 33879, June 16, 2008.

Federal Trade Commission, “Automotive Fuel Ratings, Certification and Posting; Final Rule,” 73 Federal Register

40154, July 11, 2008.

U.S. Department of Transportation, Federal Aviation Administration, “Airworthiness Standards: Rotorcraft Turbine

Engines One-Engine-Inoperative (OEI) Ratings, Type Certification Standards,” 73 Federal Register 48119, August 18,

2008.

The House executive communications database is available at http://www.congress.gove/execcomh, and the Senate

executive communications database is available at http://www.congress.gov/execcoms.

The two rules that were submitted to the House and the Senate were (1) the May 2008 DHS rule establishing a

security zone around any vessel being escorted by one or more Coast Guard, State, or local law enforcement assets

within the Captain of the Port Zone Jacksonville, Florida (received by the House of Representatives on May 29, 2008,

and by the Senate on February 9, 2009); and (2) the September 2008 rule issued by the Department of the Treasury on

“Risk Based Capital Guidelines” (received in the House of Representatives on June 26, 2009, and in the Senate on

April 16, 2009).

Telephone conversation with OIRA and OMB officials, November 6, 2009. However, GAO officials subsequently

told CRS that GAO had evidence that OIRA had received the list of missing rules by at least June 2009.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

2009, the Deputy Administrator of OIRA sent an e-mail to federal agencies saying that it “had

come to my attention that your agency may not have submitted final rules to Congress and to

[GAO] as required by the Congressional Review Act.” He urged the agencies to “contact the

GAO to determine which rules they have not yet received from your agency.” (The Deputy

Administrator did not, however, provide the agencies with a list of the missing rules, either

overall or for their agency.) He also noted in the e-mail that “agencies must submit all final rules

to Congress before they can take effect,” and provided the agencies with a copy of OMB’s 1999

guidance on the CRA.

The following week, representatives from GAO’s Office of the General Counsel told CRS that

federal agencies had begun submitting some of the missing rules listed in the May 2009 letter.87

As of November 20, 2009, GAO said it had been contacted by eight agencies regarding possible

missing rules (including one agency with no rules on the May 2009 list), and that three agencies

had recently submitted six of the missing rules—three from the Small Business Administration,

and one rule each from the Nuclear Regulatory Commission, the Securities and Exchange

Commission, and DVA.88

On December 21, 2009, CRS searched GAO’s database and determined that 18 of the missing

rules listed in the May 2009 letter had been received at GAO between November 23, 2009, and

December 17, 2009. Of these rules, five were submitted by DOT, and three each were submitted

by HHS and the Small Business Administration.

FY2009 Significant Rules Not Received by GAO

GAO said that it did not plan to send a letter to OIRA regarding missing rules that were published

during FY2009 until at least the end of calendar year 2009.89 To determine whether relatively

important rules that were published during FY2009 were being submitted to GAO as required in

the CRA, CRS used a publicly available database (at http://www.reginfo.gov) to identify

“significant”90 final rules (1) that were submitted to OIRA for review by cabinet departments or

EPA, (2) on which OIRA completed its review between October 1, 2008, and June 30, 2009,91

and (3) that were published in the Federal Register shortly after the completion of OIRA’s review.

GAO said it was not aware that OIRA had previously urged agencies to contact GAO regarding their missing rules.

Telephone conversation with Shirley Jones, Assistant General Counsel, Government Accountability Office, November

18, 2009.

The SEC and DVA had copies of the coversheets that were submitted with the report, bearing a date stamp indicating

they had been previously submitted. Therefore, the database was corrected to reflect the earlier date.

To ensure that OIRA received this letter, GAO officials said they would send it by certified mail and would also send

an electronic version to OIRA.

Executive Order 12866 defines a “significant” regulatory action as one that is expected to “(1) Have an annual effect

on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or

communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another

agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and

obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s

priorities, or the principles set forth in this Executive order.” Only about 15% of all final rules that are submitted to

GAO are considered “significant” rules.

The June 30, 2009, cutoff date was used to allow sufficient time after publication in the Federal Register for the rules

to have arrived at GAO.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

As indicated in Table 2 below, of 181 significant rules that met those criteria, 22 of the rules

(12.2 %) had not been submitted to GAO as of November 17, 2009. Some of the rules had been

published in the Federal Register more than a year earlier, and all had been published at least four

months earlier.

Table 2. Significant Final Rules Reviewed by OIRA from October 2008 Through June

2009 and Not Received at GAO

Number of

Significant Final

Rules

Number of Rules

Not Received by

GAO

Department of Agriculture (USDA)

Department of Commerce (DOC)

Department of Defense (DOD)

Department of Education (DOEd)

Department of Energy (DOE)

Department of Health and Human Services (HHS)

Department of Homeland Security (DHS)

Department of Housing and Urban Development (HUD)

Department of the Interior (DOI)

Department of Justice (DOJ)

Department of Labor (DOL)

Department of State (DOS)

Department of Transportation (DOT)

Department of the Treasury

Department of Veterans Affairs (DVA)

Environmental Protection Agency

Total

181

Department/Agency

Source: CRS analysis of published rules with completed OIRA reviews between October 1, 2008, and June 30,

2009 (see http://www.reginfo.gov/public/do/eoHistoricReport), and GAO’s CRA database (see

http://www.gao.gov/fedrules/).

USDA had the most missing significant rules during this period, but there were differences in the

rates of submission between agencies and offices within USDA. For example, five of the seven

rules issued by USDA’s Commodity Credit Corporation (CCC) had not been submitted to GAO, 92

and four of the six rules issued by the department’s Natural Resources Conservation Service

Some of these rules were issued pursuant to the Food, Conservation, and Energy Act of 2008 (the 2008 Farm Bill,

P.L. 110-234). Section 1601(c)(3) of the legislation required the Secretary of Agriculture to “use the authority provided

under section 808” of the CRA, which says that “Notwithstanding section 801, (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 therefor 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.” USDA invoked the good cause exception to notice and comment in at least two of these rules.

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Congressional Review Act: Rules Not Submitted to GAO and Congress

(NRCS) had not been submitted. On the other hand, all four of the rules issued by USDA’s Food

and Nutrition Service had been submitted to GAO.

The subjects covered by these missing rules also varied, and included the following:

•

A December 2008 USDA/CCC rule on “Farm Program Payment Limitation and

Payment Eligibility for 2009 and Subsequent Crop, Program, or Fiscal Years,”

which made “changes in payment eligibility, payment attribution, maximum

income limits, and maximum dollar benefit amounts for participants in CCCfunded programs” as required by the Food, Conservation, and Energy Act of

2008 (the 2008 Farm Bill). 93

•

An October 2008 USDA/Forest Service rule on “Roadless Area Conservation,”

which “designates 250 Idaho Roadless Areas (IRAs) and establishes five

management themes that provide prohibitions with exceptions or conditioned

permissions governing road construction, timber cutting, and discretionary

mineral development.”94

•

A January 2009 USDA/NRCS rule on the “Environmental Quality Incentives

Program” that “incorporate programmatic changes as authorized by amendments

in the Food, Conservation, and Energy Act of 2008.”95 USDA said this was a

“major” rule that was expected to have more than a $100 million annual impact

on the economy.

•

A November 2008 HHS rule on “Patient Safety and Quality Improvement,”

which “establishes a framework by which hospitals, doctors, and other health

care providers may voluntarily report information to Patient Safety Organizations

(PSOs), on a privileged and confidential basis, for the aggregation and analysis of

patient safety events. The final rule outlines the requirements that entities must

meet to become PSOs and the processes by which the Secretary will review and

accept certifications and list PSOs. It also describes the privilege and

confidentiality protections for the information that is assembled and developed

by providers and PSOs, the exceptions to these privilege and confidentiality

protections, and the procedures for the imposition of civil money penalties for the

knowing or reckless impermissible disclosure of patient safety work product.”96

The rule reportedly implemented certain aspects of the Patient Safety and Quality

Improvement Act of 2005 (P.L. 109-41).

U.S. Department of Agriculture, Commodity Credit Corporation, “Farm Program Payment Limitation and Payment

Eligibility for 2009 and Subsequent Crop, Program, or Fiscal Years,” 73 Federal Register 79267, December 29, 2008.

U.S. Department of Agriculture, Forest Service, “Special Areas; Roadless Area Conservation; Applicability to the

National Forests in Idaho,” 73 Federal Register 61455, October 16, 2008.

U.S. Department of Agriculture, Natural Resources Conservation Service and Commodity Credit Corporation,

“Environmental Quality Incentives Program,” 74 Federal Register 2293, January 15, 2009. USDA said that “Section

2904(c) of the Food, Conservation, and Energy Act of 2008 requires that the Secretary use the authority in section

808(2) of title 5, United States Code, which allows an agency to forego [the CRA’s] usual 60-day Congressional

Review delay of the effective date of a major regulation if the agency finds that there is a good cause to do so. NRCS

hereby determines that it has good cause to do so in order to meet the Congressional intent to have the conservation

programs, authorized or amended by Title II, in effect as soon as possible.”

U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality, “Patient Safety and

Quality Improvement,” 73 Federal Register 70731, November 21, 2008.

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•

A November 2008 HHS rule that made “technical changes to the existing

methodology and process used to compute and issue each State’s preliminary and

final allotments available to pay the Medicare Part B premiums for qualifying

individuals.”97 The department said the rule would “conform the existing

regulations to reflect continued funding of this program.”

•

An October 2008 DHS rule on “Safe Harbor Procedures for Employers Who

Receive a No-Match Letter,” which reaffirmed regulations providing a “safe

harbor” from liability for employers that follow certain procedures after receiving

a notice that casts doubt on the employment eligibility of their employees.98

•

An October 2008 DOI rule on “Implementation of the National Environmental

Policy Act (NEPA) of 1969,” which codified the department’s procedures for

implementing NEPA.99

•

A December 2008 DOJ rule on “Revised Regulations for Records Relating to

Visual Depictions of Sexually Explicit Conduct,” which amended the “recordkeeping, labeling, and inspection requirements to account for changes in the

underlying statute made by Congress in enacting the Adam Walsh Child

Protection and Safety Act of 2006.”100

•

A December 2008 DOT rule on “New Entrant Safety Assurance Process,” which

(among other things) “identifies 16 regulations that are essential elements of

basic safety management controls necessary to operate in interstate commerce

and makes a carrier’s failure to comply with any one of the 16 regulations an

automatic failure of the safety audit.”101 DOT said that the rule was “major”

under the CRA because it would have at least a $100 million impact on the

economy.

•

An April 2009 EPA rule on “Endocrine Disruptor Screening Program,” which

described “the specific details of the policies and procedures that EPA generally

intends to adopt for initial screening under the EDSP, including the statutory

requirements associated with and format of the test orders, as well as EPA’s

procedures for fair and equitable sharing of test costs and handling confidential

data.”102

In one case, a rule that had been developed and published by more than one agency was

submitted to GAO by one agency, but not the others. On October 20, 2008, DOL, HHS, and the

U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program;

State Allotments for Payment of Medicare Part B Premiums for Qualifying Individuals: Federal Fiscal Year 2008 and

Federal Fiscal Year 2009,” 73 Federal Register 70886, November 24, 2008.

U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, “Safe Harbor Procedures for

Employers Who Receive a No-Match Letter: Clarification; Final Regulatory Flexibility Analysis,” 73 Federal Register

63843, October 28, 2008.

U.S. Department of the Interior, Office of the Secretary, “Implementation of the National Environmental Policy Act

(NEPA) of 1969,” 73 Federal Register 61291, October 15, 2008.

100

U.S. Department of Justice, “Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit

Conduct,” 73 Federal Register 77431, December 18, 2008.

101

U.S. Department of Transportation, Federal Motor Carrier Safety Administration, “New Entrant Safety Assurance

Process,” 73 Federal Register 76471, December 16, 2008.

102

U.S. Environmental Protection Agency, “Endocrine Disruptor Screening Program; Policies and Procedures for

Initial Screening,” 74 Federal Register 17559, April 15, 2009.

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Department of the Treasury jointly issued a rule that established requirements “for group health

plans and health insurance issuers concerning hospital lengths of stay for mothers and newborns

following childbirth, pursuant to the Newborns’ and Mothers’ Health Protection Act of 1996 and

the Taxpayer Relief Act of 1997.”103 The Department of the Treasury submitted the rule to GAO,

but the DOL and HHS did not.

Related Legislation in the 111th Congress

On June 16, 2009, the House of Representatives passed H.R. 2247, the “Congressional Review

Act Improvement Act,” which would amend the CRA and eliminate the requirement that federal

agencies submit their covered rules and related reports to both Houses of Congress before such

rules can take effect. On June 17, 2009, the bill was referred to the Senate Committee on

Homeland Security and Governmental Affairs. If H.R. 2247 is enacted, covered rules and reports

would still have to be submitted to GAO, and GAO would be required to submit to each House a

weekly report containing a list of the rules received, including a notation identifying each major

rule. The Speaker of the House of Representatives would be required to publish the GAO report

in the Congressional Record. The House of Representatives passed identical legislation during the

110th Congress (H.R. 5593), but the Senate did not act on the bill before the end of the 110th

Congress.

According to the report on H.R. 2247 by the House Committee on the Judiciary, the bill “would

reduce reporting requirements for agencies that submit information to the legislative branch under

the Congressional Review Act (CRA).”104 Currently, agencies “must often resort to handdelivering the required materials by courier to the House and Senate, in order to comply with the

CRA and the standards regarding communications transmitted to Congress. Materials are

frequently returned to the promulgating agency for failure to comply with the CRA or these other

congressional requirements, delaying implementation of the rule.”105

It is possible that elimination of the requirement that agencies submit their rules and related

reports to the House and the Senate could increase the ability and willingness of agencies to

submit their rules to GAO, either electronically or otherwise.106 However, the data from FY2008

indicated that fewer rules were submitted to GAO than to either the House or the Senate.

103

U.S. Department of the Treasury, Internal Revenue Service, U.S. Department of Labor, Employee Benefits Security

Administration, and U.S. Department of Heath and Human Services, Centers for Medicare and Medicaid Services,

“Final Rules for Group Health Plans and Health Insurance Issuers Under the Newborns’ and Mothers’ Heath Protection

Act,” 73 Federal Register62410, October 20, 2008.

104

U.S. Congress, House Committee on the Judiciary, Congressional Review Act Improvement Act, report to

accompany H.R. 2247, 111th Cong., 1st sess., H.Rept. 111-150 (Washington: GPO, 2009), p. 5.

105

Ibid., p. 3.

106

GAO has said that has been able to receive CRA-covered rules and reports electronically since 1999, but that most

agencies do not do so because they must submit paper copies to the House and the Senate. See U.S. Government

Accountability Office, Congressional Review Act, GAO-08-268, November 6, 2007, p. 3. Also, in its May 27, 2008,

letter to the Administrator of OIRA, GAO noted that Congress was considering amendments to the CRA that would

eliminate the requirement that agencies submit rules to the Senate and the House of Representatives (H.R. 5593, 110th

Congress), and said if the bill was enacted into law, “we would welcome the opportunity to work with your office and

federal agencies to implement the law and make greater use of electronic submission of rules to our Office.” Letter

from Robert J. Cramer, Associate General Counsel, GAO, to Susan E. Dudley, Administrator, OIRA, May 27, 2008,

available from the author.

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Therefore, enactment of H.R. 2247 could have little effect on agencies’ compliance with the

CRA’s reporting requirements.

Analysis

Agency regulations generally start with an act of Congress, and are the means by which statutes

are implemented and specific requirements are established. Therefore, Congress has a vested

interest in overseeing the regulations that agencies issue pursuant to those statutes. Because

congressional authority over agency rulemaking was believed to have waned in recent decades

(while presidential authority over rulemaking had increased), the CRA was enacted in an attempt

to reclaim a measure of congressional control.107 Although Congress can learn about the issuance

of agency rules in many ways, the requirement in Section 801(a)(1)(A) of the CRA that agencies

submit all of their final rules to GAO and Congress before they can take effect helps to ensure

that Congress will have an opportunity to review, and possibly disapprove of, agency rules.

Notwithstanding this requirement, GAO said that it (and presumably Congress) did not receive

more than 1,000 final rules during 7 of the past 10 years. More recently, CRS discovered that

GAO did not receive 21 significant rules that were issued during FY2009. It is possible that some

of these rules were submitted by the rulemaking agencies, and are missing because of a problem

on the receiving end at GAO or Congress. However, because about two-thirds of the rules were

not received by GAO or either house of Congress, it seems more likely that the agencies did not

submit them as required by the CRA.

The CRA says that a Member of Congress can introduce a joint resolution of disapproval

regarding a rule “beginning on the date on which the report referred to in section 801(a)(1)(A) is

received by Congress.”108 Therefore, by not submitting these rules to Congress, the rulemaking

agencies have arguably prevented Congress from using the expedited disapproval authority that it

granted itself with the enactment of the CRA. The fact that Congress has used the CRA to

disapprove only one rule since the legislation was enacted109 does not lessen agencies’

responsibilities to submit their rules in accordance with the act’s requirements.

Despite the reporting requirements contained in the CRA, it appears that agencies have

implemented some, if not all, of these rules. Some of the rules have not been submitted for years.

For example, of the 31 missing rules that GAO identified in its 1999 letter to OIRA, 24 were not

listed in the GAO database in November 2009—more than 10 years after they were published and

scheduled to go into effect. Of the seven rules that were later submitted, some were not received

at GAO until years after they were published and scheduled to go into effect.110

107

Joint statement of House and Senate Sponsors, 142 Cong. Rec. S3683, at S3686 (daily ed. April 18, 1996), at 142

Cong. Rec. S3683.

108

5 U.S.C. §802(a).

109

In 2001, Congress disapproved a rule on ergonomics in the workplace. See 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).

110

See, for example, U.S. Department of Health and Human Services, Food and Drug Administration, “Amendment to

Examination and Investigation Sample Requirements,” 63 Federal Register 51297, September 25, 1998, which was not

submitted to GAO until October 22, 2002.

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Some of the missing rules were interim final or direct final rules, or were final rules in which the

agencies specifically invoked the “good cause” exception to the notice and comment

requirements in the APA. Section 808 of the CRA states that agencies can make their rules

effective “at such time as the Federal agency promulgating the rule determines” when the agency

invokes the good cause exception. Therefore, in these cases, the agencies would appear to be able

to put the rules into effect even though they had not been submitted to GAO and Congress.

However, as noted earlier in this report, the post-enactment legislative history of the CRA states

that even these rules must be submitted to GAO and Congress “as soon as practicable after

promulgation” to permit the congressional review period to begin.

The CRA currently gives both GAO and OIRA limited roles in the rule submission process.

OIRA is required to determine which rules are “major,”111 and GAO is to write a report on each

major rule within 15 calendar days.112 GAO has voluntarily taken on the task of determining

which Federal Register rules it has not received, and has periodically notified OIRA of these

missing rules. However, OIRA has not responded directly to GAO regarding most of these letters.

Also, GAO has not sent Congress copies of its letters to OIRA, or otherwise informed Congress

about the scope of this issue, and has not published a notice in the Federal Register regarding this

issue since 1998.

Congressional Options

Congress may conclude that agencies’ failure to submit all of their covered rules to GAO and

Congress is an administrative issue that should be resolved by GAO and OIRA, or by GAO and

the individual rulemaking agencies. Congress may also conclude that enactment of H.R. 2247

(allowing agencies to submit their rules only to GAO, perhaps electronically) will improve

agencies’ willingness or ability to submit all of their covered rules, and that no other action is

needed.

Should Congress want to take other actions to improve reporting of covered rules, it could

(among other things) (1) require GAO to continue to compare the rules it receives with the rules

that are published in the Federal Register, (2) require GAO to continue to report any missing

rules to OIRA, and (3) require OIRA or GAO to take other action to encourage agencies to

comply with the CRA’s reporting requirements. For example, GAO has said in the past that it

follows up with the agencies regarding any major rules that are missing. 113 Congress could

require GAO to contact the agencies for the missing non-major rules as well, or could require

OIRA to contact the agencies. GAO and OIRA have each taken action in the past to contact

individual agencies, and could be required to do so again.114 Both GAO and OIRA have, however,

indicated to CRS that they currently have limited resources to take on additional responsibilities

for CRA compliance enforcement.

OIRA played a somewhat similar role in improving agencies’ compliance with the Paperwork

Reduction Act (PRA), which specifically requires OIRA to provide direction and oversee

111

5 U.S.C. §804 (2).

5 U.S.C. §801(a)(2)(A).

113

See U.S. Government Accountability Office, Congressional Review Act, GAO-08-268, November 6, 2007, p. 3.

114

As noted earlier in this report, GAO said that it and OIRA contacted individual agencies regarding missing rules in

1998.

112

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agencies’ information collection requests.115 In its annual reports to Congress on the

implementation of the PRA in the late 1990’s and early 2000’s, OIRA reported that there were

hundreds of violations of the act each year (i.e., agencies collecting information without OIRA

approval, or collecting information after such approvals had expired). For example, OIRA

reported that there were 872 violations of the PRA in FY1998, and 710 in FY1999. GAO

included information on these violations in its annual testimonies on the implementation of the

PRA.116 In 2001, OIRA began a concerted effort to drive down the number of violations,

requiring agencies to establish procedures to ensure that information was not collected without

OIRA authorization.117 By 2003, OIRA reported that there were only 18 PRA violations

government-wide. 118

OIRA is described in Executive Order 12866 as “the repository of expertise concerning

regulatory issues, including methodologies and procedures that affect more than one agency, this

Executive order, and the President’s regulatory priorities.”119 The executive order also says that

the administrator of OIRA “shall provide meaningful guidance and oversight so that each

agency’s regulatory actions are consistent with applicable law....”120 OIRA is also uniquely

positioned both within OMB (with its budgetary influence) and within the federal rulemaking

process (reviewing and commenting on rules just before they are published in the Federal

OIRA to issue guidance on the implementation of the CRA, and that guidance is still in effect.

Therefore, OIRA could play an integral role in ensuring compliance with the CRA and

implementation of the President’s and Congress’ regulatory priorities.

Also, GAO could be required to provide a copy of its CRA compliance reports to Congress,

publish the reports in the Federal Register, or both. Providing the reports of missing rules to

Congress would give Congress a clearer sense of how the CRA is being implemented, and could

permit Congress to conduct oversight of agencies compliance with the act. Publishing the lists of

missing rules in the Federal Register could provide an incentive to the agencies to comply with

the CRA.

115

44 U.S.C. §3504(a)(1)(B).

116

See, for example, U.S. General Accounting Office, Paperwork Reduction Act: Burden Increases at IRS and Other

Agencies, GAO/T-GGD-00-114, April 12, 2000.

117

See http://www.whitehouse.gov/omb/assets/omb/inforeg/pra_memo111401.pdf.

118

See http://www.whitehouse.gov/omb/assets/omb/inforeg/compliance_pra092704.pdf.

119

The President, Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, Section

2(b).

120

Ibid., Section 6(b).

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Appendix. GAO Documents

Figure A-1. GAO’s May 2009 Letter to OIRA

Source: GAO.

Congressional Research Service

Figure A-2. Enclosure to GAO’s May 2009 Letter to OIRA Listing 101 Missing Rules During FY2008

CRS-25

CRS-26

CRS-27

Source: GAO.

CRS-28

Congressional Review Act: Rules Not Submitted to GAO and Congress

Author Contact Information

Curtis W. Copeland

Specialist in American National Government

cwcopeland@crs.loc.gov, 7-0632

Congressional Research Service

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.