Congressional Review Act (06-NOV-07, GAO-08-268T).		 
                                                                 
Under the Congressional Review Act (CRA) two types of rules,	 
major and nonmajor, must be submitted to both Houses of Congress 
and GAO before either can take effect. CRA defines a "major" rule
as one which has resulted in or is likely to result in (1) an	 
annual effect on the economy of $100 million or more; (2) a major
increase in costs or prices for consumers, individual industries,
government agencies, or geographic regions; or (3) significant	 
adverse effects on competition, employment, investment, 	 
productivity, innovation, or on the ability of U.S.-based	 
enterprises to compete with foreign-based enterprises in domestic
and export markets. CRA specifies that the determination of	 
whether a rule is major is to be made by the Office of		 
Information and Regulatory Affairs (OIRA) at the Office of	 
Management and Budget (OMB). Major rules cannot be effective	 
until 60 days after publication in the Federal Register or	 
submission to Congress, whichever is later. Nonmajor rules become
effective when specified by the agency, but not before they are  
filed with the Congress. GAO's primary role under CRA is to	 
provide the Congress with a report on each major rule containing 
GAO's assessment of whether the promulgating federal agency's	 
submissions to GAO indicate that it has complied with the	 
procedural steps required by various acts and Executive Orders	 
governing the regulatory process. These steps include preparation
of a cost-benefit analysis, where required, and compliance with  
the Regulatory Flexibility Act, the Unfunded Mandates Reform Act 
of 1995, the Administrative Procedure Act, the Paperwork	 
Reduction Act, and Executive Order No. 12866. In addition, our	 
Office provides a copy of each major rule to the interested audit
or evaluation team within GAO to ascertain if GAO has any work	 
relevant to the rule which should be brought to the attention of 
the Congress. GAO's report must be sent to the congressional	 
committees of jurisdiction within 15 calendar days. CRA is silent
as to GAO's role relating to the nonmajor rules. However, since  
we began receiving rules from federal agencies under CRA in 1996 
(Pub. L. No. 104-121, 251-253, 110 Stat. 847, 868 (1996)), we	 
have collected and made available to Congress and the public in a
researchable database on our website certain basic information	 
about major and nonmajor rules. This database contains		 
information about the 10 rules we receive on average each day,	 
including the title of the rule, the agency, the Regulation	 
Identification Number, the type of rule (major or nonmajor), the 
proposed effective date, the date published in the Federal	 
Register, the congressional review trigger date, any joint	 
resolutions of disapproval that may be enacted, and, in the case 
of major rules, a link to GAO's report on the rule. Since the	 
enactment of CRA in 1996, through October 30, 2007, GAO has	 
received 46,136 rules and of those 703 were major rules for which
we prepared reports for Congress.				 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-268T					        
    ACCNO:   A78131						        
  TITLE:     Congressional Review Act				      
     DATE:   11/06/2007 
  SUBJECT:   Agency proceedings 				 
	     Congressional protocols				 
	     Congressional/executive relations			 
	     Cost analysis					 
	     Federal agencies					 
	     Legislative procedures				 
	     Standards						 
	     Regulatory agencies				 
	     Benefit-cost tracking				 
	     Federal Agency Major Rules 			 

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GAO-08-268T

   

     * [1]Standardized Submission Form
     * [2]GAO Receipt of Rules
     * [3]Sixty Day Delay
     * [4]Conclusion
     * [5]GAO's Mission
     * [6]Obtaining Copies of GAO Reports and Testimony

          * [7]Order by Mail or Phone

     * [8]To Report Fraud, Waste, and Abuse in Federal Programs
     * [9]Congressional Relations
     * [10]Public Affairs
     * [11]PDF6-Ordering Information.pdf

          * [12]GAO's Mission
          * [13]Obtaining Copies of GAO Reports and Testimony

               * [14]Order by Mail or Phone

          * [15]To Report Fraud, Waste, and Abuse in Federal Programs
          * [16]Congressional Relations
          * [17]Public Affairs

Statement for the Record

Before the Subcommittee on Commercial and Administrative Law, Committee on
the Judiciary, House of Representatives

United States Government Accountability Office

GAO

To accompany the Committee hearing record of Tuesday, November 6, 2007

CONGRESSIONAL REVIEWACT

Statement of Gary Kepplinger, General Counsel

GAO-08-268T

Chairwoman Sanchez, Mr. Cannon, and Members of the Subcommittee:

I am pleased to submit this statement for the record on the Government
Accountability Office's responsibilities under the Congressional Review
Act (CRA), and our processes and experiences in carrying out these
responsibilities. CRA was designed to give Congress an opportunity to
review a rule before it takes effect and to disapprove any rule to which
Congress objects through the passage of a joint resolution with
presentment to the President.

Under CRA two types of rules, major and nonmajor, must be submitted to
both Houses of Congress and GAO before either can take effect. 5 U.S.C. S
801(a)(1)(A). CRA defines a "major" rule as one which has resulted in or
is likely to result in (1) an annual effect on the economy of $100 million
or more; (2) a major increase in costs or prices for consumers, individual
industries, government agencies, or geographic regions; or (3) significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of U.S.-based enterprises to compete with
foreign-based enterprises in domestic and export markets. 5 U.S.C. S
804(2). CRA specifies that the determination of whether a rule is major is
to be made by the Office of Information and Regulatory Affairs (OIRA) at
the Office of Management and Budget (OMB). Id. Major rules cannot be
effective until 60 days after publication in the Federal Register or
submission to Congress, whichever is later. 5 U.S.C. S 801(a)(3).^1
Nonmajor rules become effective when specified by the agency, but not
before they are filed with the Congress. 5 U.S.C. S 801(a)(4).

GAO's primary role under CRA is to provide the Congress with a report on
each major rule containing GAO's assessment of whether the promulgating
federal agency's submissions to GAO indicate that it has complied with the
procedural steps required by various acts and Executive Orders governing
the regulatory process. 5 U.S.C. S 801(a)(2)(A). These steps include
preparation of a cost-benefit analysis, where required, and compliance
with the Regulatory Flexibility Act, the Unfunded Mandates Reform Act of
1995, the Administrative Procedure Act, the Paperwork Reduction Act, and
Executive Order No. 12866. In addition, our Office provides a copy of each
major rule to the interested audit or evaluation team within GAO to
ascertain if GAO has any work relevant to the rule which should be brought
to the attention of the Congress. GAO's report must be sent to the
congressional committees of jurisdiction within 15 calendar days.^2

^1 Under CRA a delay in the effective date for rules does not apply in the
case of rules related to hunting, fishing, or camping, or to rules where
an agency finds "good cause." 5 U.S.C. S 808.

CRA is silent as to GAO's role relating to the nonmajor rules. However,
since we began receiving rules from federal agencies under CRA in 1996
(Pub. L. No. 104-121, SS251-253, 110 Stat. 847, 868 (1996)), we have
collected and made available to Congress and the public in a researchable
database on our website certain basic information about major and nonmajor
rules. This database contains information about the 10 rules we receive on
average each day, including the title of the rule, the agency, the
Regulation Identification Number,^3 the type of rule (major or nonmajor),
the proposed effective date, the date published in the Federal Register,
the congressional review trigger date, any joint resolutions of
disapproval that may be enacted, and, in the case of major rules, a link
to GAO's report on the rule. Since the enactment of CRA in 1996, through
October 30, 2007, GAO has received 46,136 rules and of those 703 were
major rules for which we prepared reports for Congress.

Standardized Submission Form

GAO has developed for agencies a standardized submission form, which
allows for more efficient processing of rules delivered under CRA.
Agencies now submit a standardized "Submission of Federal Rules under the
Congressional Review Act" form with each rule submitted to GAO. The form
includes the information required by CRA for agency reports accompanying
submitted rules, such as the Department or Agency name, the title of the
rule, the Rule Identification Number and whether or not the agency or OIRA
considers the rule to be major. 5 U.S.C. S 801(a)(1)(A). For major rules,
the agency indicates which acts and Executive orders the agency determined
were relevant to the rule, and whether or not information regarding
compliance with these acts and orders is included in the rule as
submitted. The form is available on the GAO's website and may be submitted
electronically. The form is also available on the section of the OIRA
website that offers guidance and forms to federal agencies.^4

^2 In response to Congressional requests, we also have issued to the
Congress eight legal opinions on whether or not an agency action is a rule
as defined by CRA (B-292045, May 19, 2003; B-291906, February 28, 2003;
B-287557, May 14, 2001; B-286338, October 17, 2000; B-281575, January 20,
1999; B-278224, November 10, 1997; B-275178, July 3, 1997; B-274505,
September 16, 1996), and an additional opinion interpreting the 60-day
delay period for major rules. B-289880, April 5, 2002.

^3 The Regulatory Information Service Center assigns a Regulation
Identification Number (RIN) to identify each regulatory action listed in
the Unified Agenda of Federal Regulatory and Deregulatory Actions. OMB has
asked agencies to include RINs in the headings of their Rule and Proposed
Rule documents when publishing them in the Federal Register, to make it
easier for the public and agency officials to track the publication
history of regulatory actions throughout their development.

GAO Receipt of Rules

Federal agencies may use a variety of means to submit rules and reports to
GAO, including hand-delivery, postal mail, facsimile or electronic mail.
GAO has been able to receive agency rules and reports electronically since
1999, although only a handful of agencies have used this method to
transmit rules. Our conversations with agencies indicate that this is
attributable, in part, to the fact that the House of Representatives and
the Senate require paper copies to be submitted to fulfill the agency's
obligation under CRA.

As noted earlier, a rule must be filed in accordance with CRA before it
can become effective. 5 U.S.C. S 801(a)(1)(A). GAO has conducted yearly
reviews to determine whether all final rules covered by CRA and published
in the Federal Register were filed with GAO. We submit to OIRA each year a
computer listing of rules we found published in the Federal Register the
previous year that have not been filed with our Office. Additionally, GAO
monitors the Federal Register daily for major rules under CRA to ensure
that we receive all such rules. On the occasion that a major rule is
published that has not been received by GAO, GAO promptly follows up with
the agency to remind the agency of its responsibilities under CRA.

Sixty Day Delay

A consistent difficulty in implementing CRA has been the failure of some
agencies to delay the effective date of major rules for 60 days as
required by CRA. 5 U.S.C. S 801(a)(3)(A). In 2007, eight of the
forty-three major rules we have reviewed to date have not allowed for the
required 60-day delay. We find agencies are not budgeting enough time into
their regulatory timetable to allow for the statutory delay. In one of
these cases, the agency, Federal Energy Regulatory Commission, delayed the
effective date of its rule to comply with CRA. 72 Fed. Reg. 31,452 (June
7, 2007).

^4 The form is available at
http://www.whitehouse.gov/omb/inforeg/regpol-agency_review.html (last
visited November 7, 2007).

Conclusion

We look forward to fulfilling GAO's continuing responsibilities under CRA
and to working with the subcommittee in the future in its continued
oversight of CRA processes and procedures.

Appendix: Rules Received Under CRA by Fiscal Year

Fiscal Year All Rules Major Rules 
1996^a          2,059          35 
1997            3,932          59 
1998            4,746          70 
1999            4,560          58 
2000            4,619          65 
2001            4,038          81 
2002            3,736          52 
2003            4,238          48 
2004            4,139          63 
2005            3,888          64 
2006            3,058          54 
2007            3,092          51 
Total          46,105         700 

Source: GAO Federal Rules Database.

^aReporting under the act began when CRA was passed on March 29, 1996.

(996216)

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