FEDERAL RULEMAKING: OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents’ Terms

From: US General Accountability Office

Economically Significant Regulations Determined to be Noncompliant with the Congressional Review Act

Nearly All Economically Significant Regulations Reported to the Public Compliance with Four Procedural Requirements, but a Quarter Did Not Comply with the Congressional Review Act

OIRA staff noted that CRA states that agencies are responsible for complying with the act’s requirements, and E.O. 12866 states that agencies are responsible for adhering to applicable laws. However under E.O. 12866, OIRA is also responsible for oversight of agencies’ rulemaking, consistent with law, and reviews regulations before publication, which provides it an opportunity to identify and help agencies avoid potential noncompliance. OIRA staff asserted that they already take steps to check agencies’ compliance with CRA. However, we found that OIRA completed its E.O. 12866 reviews for 110 of the 132 noncompliant economically significant regulations within 90 days of the stated effective date. OIRA staff noted that they cannot monitor every action agencies take following their review of draft final regulations, such as the specific date a regulation is published in the Federal Register or whether an agency submits a copy of the regulation to Congress or us. However, because economically significant regulations are generally classified as major rules under CRA, this indicates that OIRA frequently completes its review in close proximity to the start of the 60-day period intended for congressional review, and in such cases the regulation is at high risk of noncompliance with CRA. [Emphasis added.]


Recommendation for Executive Action

We are making the following recommendation to the Director of OMB:

  • The Director of OMB should ensure that OIRA’s staff, as part of the regulatory review process, examine the planned timeframes for implementing economically significant regulations or major rules and identify regulations that appear at potential risk of not complying with the Congressional Review Act’s delay requirements and then work with the agencies to ensure compliance with these requirements (Recommendation 1).

Read Complete Report GAO-18-183

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