Heretofore the Congressional Review Act (CRA) was a sleepy statute that was awakened periodically with the departure of an incumbent Administration to invalidate midnight regulations. Recent actions taken by two federal agencies acting independently of each other have converted the CRA into a 24/7 oversight mechanism.
First, the Office of Information and Regulatory Affairs in the White House Office of Management and has issued a directive to federal agencies requiring that all guidance documents be submitted to OMB before they are promulgated.
Second, the Administrative Conference of the US (ACUS) has issued a report requesting that all federal agencies post their guidance on a readily accessible website so as to maximize public participation in the regulatory process.
Implementation of these two recommendations in tandem, although not readily recognized by some or in the alternative recognized but not supported by others, places a glaring light not only on the issuance of new guidance but also on the failure to notify the public of the existence of previously issued guidance. Of particular note are agencies that have issued guidance documents and never listed them on their website as directed by OMB in an earlier directive.
A point of emphasis is that prior to ACUS issuing a report it convenes a panel of experts to study the issue in considerable detail. In addition the panel discussions are open to the public and are memorialized in a video library available for future reference by any interested party. Consequently recommendations made by ACUS should not be read as the content of cold standalone reports but instead as the output of hours of intensive debate and analysis conducted in the most transparent of fishbowls.
Scholars interested in reviewing the extensive debates on this issue should review Tape 1 and Tape 2. The aforementioned tapes can and should serve as an invaluable resource if and when a retrospective review of the ACUS recommendation is undertaken. The ACUS website also includes a convenient compilation of written comments submitted on the issue under discussion. There is no tape available of the third ACUS meeting where it was demonstrated that guidance documents issued by an identified agency are at risk as a result of the ACUS and OMB directives working in tandem.
Lastly it should be noted that the CRA adopts a broad definition of the term “rule”; the Congressional Research Service concludes:
The category of rules the CRA covers is broader than the category of rules that are subject to the Administrative Procedure Act’s (APA) notice-and-comment requirements for federal rulemaking. As such, some agency actions, such as guidance documents, that may not be subject to notice and-comment rulemaking procedures could still be considered rules under the CRA and thus could be subject to the CRA’s fast-track disapproval procedures.
For this reason the OMB directive on guidance documents coupled with the ACUS public disclosure requirement increases the oversight reach of the Congressional Review Act. Also read a “Lamentation on the Status of Guidance Documents”.