Congressional Review Act: Rules Not Submitted to GAO and Congress

Curtis W. Copeland
Specialist in American National Government

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 May 2009 letter 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 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. Although agencies began sending rules to GAO shortly thereafter, as of July 2010, 49 of the 101 missing rules still had not been submitted to GAO. 

On January 19, 2010, GAO sent OIRA a letter listing 31 substantive rules that were published during FY2009 that had not been submitted to GAO. OIRA subsequently sent another e-mail to the agencies reminding them of their CRA responsibilities and said it planned to provide GAO with a list of agency contacts. As of July 2010, all but 3 of the 31 missing rules had been submitted. 

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 publish the list of missing rules on its website.


Date of Report: August 2, 2010
Number of Pages: 34
Order Number: R40997
Price: $29.95

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