Congressional Review Act: Implementation and Coordination (Testimony,
03/10/98, GAO/T-OGC-98-38).
GAO discussed its experience in fulfilling its responsibilities under
the Congressional Review Act (CRA).
GAO noted that: (1) its primary role under the CRA is to provide
Congress with a report on each major rule concerning GAO's assessment of
the promulgating federal agency's compliance with the procedural steps
required by various acts and Executive orders governing the regulatory
process; (2) these include preparation of a cost-benefit analysis, when
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 12866; (3) GAO's report
must be sent to the congressional committees of jurisdiction within 15
calendar days; (4) although the law is silent as to GAO's role relating
to the nonmajor rules , GAO believes that basic information about the
rules should be collected in a manner that can be of use to Congress and
the public; (5) to do this, GAO has established an database that gathers
basic information about the 15-20 rules GAO receives on the average each
day; (6) GAO's database captures the title, agency, the Regulation
Identification Number, the type of rule, the proposed effective date,
the date published in the Federal Register, the congressional review
trigger date, and any joint resolutions of disapproval that may be
enacted; (7) GAO has recently made this database available, with limited
research capabilities, on the Internet; (8) GAO conducted a review to
determine whether all final rules covered by CRA and published in the
Federal Register were filed with Congress and GAO; (9) as a result of
GAO's compliance audit, 264 rules have been filed with GAO and Congress
and are now effective under CRA; (10) one area of consistent difficulty
in implementing CRA had been the failure of some agencies to delay the
effective date of major rules for 60 days as required by the act; (11)
one early question about implementation of CRA was whether executive
agencies or the Office of Information and Regulatory Affairs (OIRA)
would attempt to avoid designating rules as major and thereby avoid
GAO's review and the 60-day delay in the effective date; and (12) while
GAO is unaware of any rule that OIRA misclassified to avoid the major
rule designation, the failure of agencies to identify some issuances as
rules at all has meant that some major rules have not been identified.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: T-OGC-98-38
TITLE: Congressional Review Act: Implementation and Coordination
DATE: 03/10/98
SUBJECT: Reporting requirements
Federal regulations
Congressional/executive relations
Agency proceedings
Legislative procedures
Proposed legislation
Congressional oversight
Data bases
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Cover
================================================================ COVER
Subcommittee on National Economic Growth, Natural Resources, and
Regulatory Affairs, Committee on Government Reform and Oversight,
House of Representatives
For Release on Delivery
Expected at
10:00 a.m., EST
Tuesday,
March 10, 1998
CONGRESSIONAL REVIEW ACT -
IMPLEMENTATION AND COORDINATION
Statement of Robert P. Murphy, General Counsel
GAO/T-OGC-98-38
GAO/OGC-98-38t
(996216)
Abbreviations
=============================================================== ABBREV
APA -
CRA -
OIRA -
============================================================ Chapter 0
Chairman McIntosh, Mr. Tierney, and Members of the Subcommittee:
I am pleased to appear before you today to discuss the General
Accounting Office's experience in fulfilling its responsibilities
under the Congressional Review Act (CRA). I will also address our
efforts to coordinate implementation of the act with the Office of
Management and Budget's Office of Information and Regulatory Affairs
(OIRA). Finally, we will offer some suggestions on how OIRA could
more effectively exercise its leadership and guidance
responsibilities, as required by Executive Order 12866, to enhance
the effectiveness of this act.
Congressional oversight of rulemaking as contemplated by CRA can be
an important and useful tool for balancing and accommodating the
concerns of American citizens and businesses with federal agency
rulemaking. It is important to assure that Executive branch agencies
are responsive to citizens and businesses about the reach, cost, and
impact of regulations without compromising the statutory mission
given to those agencies. CRA seeks to accomplish this by giving the
Congress an opportunity to review rules before they take effect and
to disapprove those found to be too burdensome, excessive,
inappropriate, duplicative, or otherwise objectionable.
Under CRA two types of rules, major and nonmajor, must be submitted
to both Houses of Congress and the 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 what rules
are major is to be made by OIRA. Major rules cannot be effective
until 60 days after publication in the Federal Register or submission
to Congress and GAO, whichever is later. Nonmajor rules become
effective when specified by the agency, but not before they are filed
with the Congress and GAO.
GAO's primary role under CRA is to provide the Congress with a report
on each major rule concerning GAO's assessment of the promulgating
federal agency's "compliance with the procedural steps" required by
various acts and Executive orders governing the regulatory process.
These include preparation of a cost-benefit analysis, when 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. GAO's
report must be sent to the congressional committees of jurisdiction
within 15 calendar days.
Although the law is silent as to GAO's role relating to the nonmajor
rules, we believe that basic information about the rules should be
collected in a manner that can be of use to Congress and the public.
To do this, we have established a database that gathers basic
information about the 15-20 rules we receive on the average each day.
Our database captures the title, the agency, the Regulation
Identification Number, the type of rule, the proposed effective date,
the date published in the Federal Register, the congressional review
trigger date, and any joint resolutions of disapproval that may be
enacted. We have recently made this database available, with limited
research capabilities, on the Internet. I will discuss in a minute
our belief that this database would have more significant value to
the Congress if the Executive branch agencies would file their
reports with us in a standard format either electronically or in a
manner amenable to modern scanning techniques.
Since the congressional rulemaking review provisions of CRA were
enacted on March 29, 1996, our Office has received 115 major and
7,605 nonmajor rules from Executive branch and independent agencies.
UNFILED RULES
---------------------------------------------------------- Chapter 0:1
As noted earlier, before a rule can become effective, it must be
filed in accordance with the statute. GAO conducted a review to
determine whether all final rules covered by CRA and published in the
Register were filed with the Congress and GAO. We performed this
review to both verify the accuracy of our database and to ascertain
the degree of agency compliance with CRA. We were concerned that
regulated entities may have been led to believe that rules published
in the Federal Register were effective when, in fact, they were not
unless filed in accordance with CRA.
Our review covered the 10-month period from October 1, 1996, to July
31, 1997. In November 1997, we submitted to OIRA a computer listing
of the rules that we found published in the Federal Register but not
filed with our Office. This initial list included 498 rules from 50
agencies. OIRA distributed this list to the affected agencies and
departments and instructed them to contact GAO if they had any
questions regarding the list. Beginning in mid-February, because 321
rules remained unfiled, we followed up with each agency that still
had rules which were unaccounted for.
Our Office has experienced varying degrees of responses from the
agencies. Several agencies, notably the Environmental Protection
Agency and the Department of Transportation, took immediate and
extensive corrective action to submit rules that they had failed to
submit and to establish fail-safe procedures for future rule
promulgation. Other agencies responded by submitting some or all of
the rules that they had failed to previously file. Several agencies
are still working with us to assure 100 percent compliance with CRA.
Some told us they were unaware of CRA or of the CRA filing
requirement.
Overall, our review disclosed that:
-- 279 rules should have been filed with us; 264 of these have
subsequently been filed;
-- 182 were found not to be covered by CRA as rules of particular
applicability or agency management and thus were not required to
be filed;
-- 37 rules had been submitted timely and our database was
corrected; and
-- 15 rules from six agencies have thus far not been filed.
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.
As a result of GAO's compliance audit, however, 264 rules now have
been filed with GAO and the Congress and are thus now effective under
CRA. 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.
SIXTY-DAY DELAY AND "GOOD
CAUSE"
---------------------------------------------------------- Chapter 0:2
One area of 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 section 801(a)(3)(A) of the act. Eight
major rules have not permitted the required 60-day delay, including
the Immigration and Naturalization Service's major rule regarding the
expedited removal of aliens. Also, this appears to be a continuing
problem since one of the eight rules was issued in January 1998. We
find agencies are not budgeting enough time into their regulatory
timetable to allow for the delay and are misinterpreting the "good
cause" exception to the 60-day delay period found in section 808(2).
Section 808(2) states that, notwithstanding section 801, "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. This language
mirrors the exception in the Administrative Procedure Act (APA) to
the requirement for notice and comment in rulemaking. 5 U.S.C. �
553(b)(3)(B). In our opinion, the "good cause" exception is only
available if a notice of proposed rulemaking was not published and
public comments were not received. Many agencies, following a notice
of proposed rulemaking, have stated in the preamble to the final
major rule that "good cause" existed for not providing the 60-day
delay. Examples of reasons cited for the "good cause" exception
include (1) that Congress was not in session and thus could not act
on the rule, (2) that a delay would result in a loss of savings that
the rule would produce, or (3) that there was a statutorily mandated
effective date.
The former administrator of OIRA disagreed with our interpretation of
the "good cause" exception. She believed that our interpretation of
the "good cause" exception would result in less public participation
in rulemaking because agencies would forgo issuing a notice of
proposed rulemaking and receipt of public comments to be able to
invoke the CRA "good cause" exception. OIRA contends that the proper
interpretation of "good cause" should be the standard employed for
invoking section 553(d)(3) of the APA, "as otherwise provided by the
agency for good cause found and published with the rule," for
avoiding the 30-day delay in a rule's effective date required under
the APA.
Since CRA's section 808(2) mirrors the language in section 553(b)(B),
not section 553(d)(3), it is clear that the drafters intended the
"good cause" exception to be invoked only when there has not been a
notice of proposed rulemaking and comments received.
DEFINITIONS OF RULES AND MAJOR
RULES
---------------------------------------------------------- Chapter 0:3
One early question about implementation of CRA was whether Executive
agencies or OIRA would attempt to avoid designating rules as major
and thereby avoid GAO's review and the 60-day delay in the effective
date. While we are unaware of any rule that OIRA misclassified to
avoid the major rule designation, the failure of agencies to identify
some issuances as "rules" at all has meant that some major rules have
not been identified.
CRA contains a broad definition of "rule," including more than the
usual "notice and comment" rulemakings under the Administrative
Procedure Act which are published in the Federal Register. "Rule"
means the whole or part of an agency statement of general
applicability and future effect designed to implement, interpret, or
prescribe law or policy.
The legislative history of CRA makes clear that the authors intended
a broad interpretation of what constitutes a rule. As Chairman
McIntosh noted in his floor statement during the final consideration
of CRA,
"All too often, agencies have attempted to circumvent the notice
and comment requirements of the Administrative Procedure Act by
trying to give legal effect to general policy statements,
guidelines, and agency policy and procedure manuals. Although
agency interpretative rules, general statements of policy,
guideline documents, and agency and procedure manuals may not be
subject to the notice and comment provisions of section 553(c)
of title 5, United States Code, these types of documents are
covered under the congressional review provisions of the new
chapter 8 of title 5."
On occasion, our Office has been asked whether certain agency action,
issuance, or policy constitutes a "rule" under CRA such that it would
not take effect unless submitted to our Office and the Congress in
accordance with CRA. For example, in response to a request from the
Chairman of the Subcommittee on Forests and Public Land Management,
Senate Committee on Energy and Resources, we found that a memorandum
issued by the Secretary of Agriculture in connection with the
Emergency Salvage Timber Sale Program constituted a "rule" under CRA
and should have been submitted to the Houses of Congress and GAO
before it could become effective. Likewise, we found that the
Tongass National Forest Land and Resource Management Plan issued by
the United States Forest Service was a "rule" under CRA and should
have been submitted for congressional review. OIRA stated that, if
the plan was a rule, it would be a major rule.
The Forest Service has in excess of 100 such plans promulgated or
revised which are not treated as rules under CRA. Many of these may
actually be major rules that should be subject to CRA filing and, if
major rules, subject to the 60-day delay for congressional review.
In testimony before the Senate Committee on Energy and Natural
Resources and the House Committee on Resources regarding the Tongass
Plan, the Administrator of OIRA stated that, as was the practice
under the APA, each agency made its own determination of what
constituted a rule under CRA and by implication, OIRA was not
involved in these determinations.
We believe that for CRA to achieve what the Congress intended, OIRA
must assume a more active role in guiding or overseeing these types
of agency decisions. Other than an initial memorandum following the
enactment of CRA, we are unaware of any further OIRA guidance.
Because each agency or commission issues many manuals, documents, and
directives which could be considered "rules" and these items are not
collected in a single document or repository such as the Federal
Register, for informal rulemakings, it is difficult for our Office to
ascertain if agencies are fully complying with the intent of CRA.
Having another set of eyes reviewing agency actions, especially one
which has desk officers who work on a daily basis with certain
agencies, would be most helpful.
DATABASE ENHANCEMENT
---------------------------------------------------------- Chapter 0:4
We have attempted to work with Executive agencies to get more
substantive information about the rules and to get such information
supplied in a manner that would enable quick assimilation into our
database. An expansion of our database could make it more useful not
only to GAO for its use in supporting congressional oversight work,
but directly to the Congress and to the public. Attached to this
testimony is a copy of a questionnaire designed to obtain basic
information about each rule covered by CRA. This questionnaire asks
the agencies to report on such items as (1) whether the agency
provided an opportunity for public participation, (2) whether the
agency prepared a cost-benefit analysis or a risk assessment, (3)
whether the rule was reviewed under Executive orders for federalism
or takings implications, and (4) whether the rule was economically
significant. Such a questionnaire would be prepared in a manner that
facilitates incorporation into our database by electronic filing or
by scanning.
In developing and attempting to implement the use of the
questionnaire, we consulted with Executive branch officials to insure
that the requested information would not be unnecessarily burdensome.
We circulated the questionnaire for comment to 20 agency officials
with substantial involvement in the regulatory process, including
officials from OIRA. The Administrator of OIRA submitted a response
in her capacity as Chair of the Regulatory Working Group,
consolidating comments from all the agencies represented in that
group. It is the position of the group that the completion of this
questionnaire for each of the 4,000 to 5,000 rules filed each year is
too burdensome for the agencies concerned. The group points out that
the majority of rules submitted each year are routine or
administrative or are very narrowly focused regional, site-specific,
or highly technical rules.
We continue to believe that it would further the purpose of CRA for a
database of all rules submitted to GAO to be available for review by
Members of Congress and the public and to contain as much information
as possible concerning the content and issuance of the rules. We
believe that further talks with the Executive branch, led by OIRA,
can be productive and that there may be alternative approaches, such
as submitting one questionnaire for repetitive or routine rules. If
a routine rule does not fit the information on the submitted
questionnaire, a new questionnaire could be submitted for only that
rule. For example, the Department of Transportation could submit one
questionnaire covering the numerous air worthiness directives it
issues yearly. If a certain action does not fit the overall
questionnaire, a new one for only that rule would be submitted.
We note that almost all agencies have devised their own forms for the
submission of rules, some of which are as long or almost as extensive
as the form we recommend. Additionally, some agencies prepare rather
comprehensive narrative reports on nonmajor rules. We are unable to
easily capture data contained in such narrative reports with the
resources we have staffing this function now. The reports are
systematically filed and the information contained in them
essentially is lost. Our staff could, however, incorporate an
electronic submission or scan a standardized report into our database
and enable the data contained therein to be used in a meaningful
manner.
CONCLUSION
---------------------------------------------------------- Chapter 0:5
CRA gives the Congress an important tool to use in monitoring the
regulatory process, and we believe that the effectiveness of that
tool can be enhanced. Executive Order 12866 requires that OIRA,
among other things, provide meaningful guidance and oversight so that
each agency's regulatory actions are consistent with applicable law.
After almost 2 years' experience in carrying out our responsibilities
under the act, we can suggest four areas in which OIRA should
exercise more leadership within the Executive branch regulatory
community, consistent with the intent of the Executive Order, to
enhance CRA's effectiveness and its value to the Congress and the
public. We believe that OIRA should:
-- require standardized reporting in a GAO-prescribed format that
can readily be incorporated into GAO's database;
-- establish a system to monitor compliance with the filing
requirement on an ongoing basis;
-- provide clarification on the "good cause" exception to the
60-day delay provision and oversee agency compliance during its
Executive Order 12866 review; and
-- provide clarifying guidance as to what is a rule that is subject
to CRA and oversee the process of identifying such rules.
Thank you, Mr. Chairman. This concludes my prepared remarks. I
would be happy to answer any questions you may have.
(See figure in printed edition.)Attachment
============================================================ Chapter 0
(See figure in printed edition.)
*** End of document. ***