Congressional Review Act: Rules Not
Submitted to GAO and Congress
Curtis W. Copeland
Specialist in American National Government
December 29, 2009
Congressional Research Service
7-5700
www.crs.gov
R40997
CRS Report for Congress
P
repared for Members and Committees of Congress
Congressional Review Act: Rules Not Submitted to GAO and Congress
Summary
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
most recent of these letters was sent to OIRA in May 2009, and 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 26, 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. In the following
week, several of the rules were submitted to GAO, and more than a dozen other rules were
submitted in the following month. Also, CRS determined that 22 significant rules that were
published in the Federal Register between October 2008 and July 2009 were not listed in GAO’s
database as of mid-November 2009.
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 both.
This report will be updated to reflect subsequent legislative or other developments.
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Congressional Review Act: Rules Not Submitted to GAO and Congress
Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 2
Covered Rules....................................................................................................................... 3
Legislative History of the Rule Submission Requirement ...................................................... 4
Post-Enactment Joint Statement ...................................................................................... 5
OMB Guidance on the Rule Submission Requirements ......................................................... 6
GAO Opinion on the CRA and the Effective Date of a Rule .................................................. 7
Early GAO Reviews Determined That Some Covered Rules Were Not Being Submitted ............. 7
GAO Has Repeatedly Notified OIRA That All Rules Were Not Being Submitted......................... 9
GAO’s May 2009 Letter to OIRA ....................................................................................... 10
Agencies and Issues ...................................................................................................... 11
Submission of Missing Rules After GAO’s May 2009 Letter ......................................... 14
Congress Did Not Receive Most of the FY2008 Missing Rules ..................................... 15
OIRA’s Actions in November 2009 and Agencies’ Response ......................................... 15
FY2009 Significant Rules Not Received by GAO ..................................................................... 16
Related Legislation in the 111th Congress .................................................................................. 20
Analysis.................................................................................................................................... 21
Congressional Options .............................................................................................................. 22
Figures
Figure A-1. GAO’s May 2009 Letter to OIRA........................................................................... 24
Figure A-2. Enclosure to GAO’s May 2009 Letter to OIRA Listing 101 Missing Rules
During FY2008...................................................................................................................... 25
Tables
Table 1. Number of Substantive Final Rules Not Received by GAO, FY2008............................ 11
Table 2.Significant Final Rules Reviewed by OIRA from October 2008 Through June
2009 and Not Received at GAO ............................................................................................. 17
Appendixes
Appendix. GAO Documents...................................................................................................... 24
Contacts
Author Contact Information ...................................................................................................... 29
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Congressional Review Act: Rules Not Submitted to GAO and Congress
Introduction
On November 20, 2007, the Department of Homeland Security (DHS) published a final rule
entitled “Appendix to Chemical Facility Anti-Terrorism Standards.”1 Publication of this rule
marked a significant step in a multi-year policy process that began in the wake of the terrorist
attacks of September 11, 2001.2 Section 550 of the Department of Homeland Security
Appropriations Act of 2007 (P.L. 109-295, October 4, 2006) required the Secretary of DHS to
issue final regulations establishing “risk-based performance standards for security of chemical
facilities” by April 2007. In December 2006, DHS issued an advance notice of proposed
rulemaking, which sought comment on a range of issues.3 On April 9, 2007, DHS issued an
interim final rule that required covered chemical facilities to prepare “security vulnerability
assessments” and “site security plans” that satisfy the new risk-based performance standards.4
The interim final rule went into effect on June 8, 2007, except for an appendix containing a
tentative list of “chemicals of interest” (COIs). DHS took comments from the public on the list,
and published the November 2007 rule making the list final. The final rule also, among other
things, (1) adjusted the “screening threshold quantities” (STQs) for certain COIs; (2) defined the
specific security issue or issues implicated by each COI, (3) established different STQs for COIs
based upon the security issue presented, and (4) added provisions that instructed facilities on how
to calculate the quantities of COIs that they have in their possession. DHS said that the changes in
the appendix “will assist the Department in more precisely identifying facilities that may be
designated as high risk, while reducing the burden on facilities that possess chemicals in smaller
amounts.”5
The rule was published with an effective date of November 20, 2007, and has been implemented
since that date.6 However, DHS did not comply with a statutory provision commonly known as
the Congressional Review Act (CRA; 5 U.S.C. §§801-808), which requires each federal agency
to send its covered final rules to the Comptroller General at the Government Accountability
Office (GAO) and to both houses of Congress “[b]efore [such rules] can take effect.”7 As of
1 U.S. Department of Homeland Security, “Appendix to Chemical Facility Anti-Terrorism Standards,” 72 Federal
Register 65396, November 20, 2007.
2 For detailed information on this issue, see CRS Report R40695, Chemical Facility Security: Reauthorization, Policy
Issues, and Options for Congress, by Dana A. Shea.
3 U.S. Department of Homeland Security, “Chemical Facility Anti-Terrorism Standards,” 71 Federal Register 78276,
December 28, 2006.
4 U.S. Department of Homeland Security, “Chemical Facility Anti-Terrorism Standards,” 72 Federal Register 17688,
April 9, 2007.
5 U.S. Department of Homeland Security, “Appendix to Chemical Facility Anti-Terrorism Standards,” 72 Federal
Register 65396, November 20, 2007, p. 65396.
6 For example, in an October 1, 2009, statement for the record provided to the Subcommittee on Energy and
Environment, House Committee on Energy and Commerce, Rand Beers, Under Secretary for the National Protection
and Programs Directorate said (pp. 4-5) “In May, the Department issued approximately 140 final tiering determination
letters to the highest risk (Tier 1) facilities, confirming their high-risk status and initiating their 120-day time frame for
submitting [a Site Security Plan, SSP]. In June and July, we notified approximately 826 facilities of their status as final
Tier 2 facilities and the associated due dates for their SSPs. Most recently, on August 31, 2009, we notified
approximately 137 facilities of their status as either a final Tier 1, 2, or 3 facility and the associated due dates for their
respective SSPs. Following preliminary authorization of the SSPs, the Department expects to begin performing
inspections in the first quarter of FY 2010, starting with the Tier 1-designated facilities.” To view a copy of this
testimony, see http://energycommerce.house.gov/Press_111/20091001/beers_testimony.pdf.
7 5 USC §801(a)(1)(A).
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November 20, 2009—two years after the rule was published—neither GAO nor Congress had
received the rule.
This report discusses the CRA requirement that federal agencies send their final rules to GAO and
Congress before they can take effect, and notes that agencies have not done so more than 1,000
times in recent years. It also discusses the legislative history of the act regarding CRA rule
submission, describes current legislation related to this issue, and presents other options that
Congress could consider.
Background
The CRA was included as part of the Small Business Regulatory Enforcement Fairness Act
(SBREFA; Title II of P.L. 104-121, 5 U.S.C. §601 note), which was signed into law on March 29,
1996. The act established expedited legislative procedures (primarily in the Senate) by which
Congress may disapprove agencies’ final rules by enacting a joint resolution of disapproval. The
enactment of the CRA was an attempt to reestablish a measure of congressional authority over
rulemaking. As Senator Don Nickles, one of the sponsors of the legislation, said shortly after the
CRA was enacted,
As more and more of Congress’ legislative functions have been delegated to federal
regulatory agencies, many have complained that Congress has effectively abdicated its
constitutional role as the national legislature in allowing federal agencies so much latitude in
implementing and interpreting congressional enactments. In many cases, this criticism is
well founded. Our constitutional scheme creates a delicate balance between the appropriate
roles of the Congress in enacting laws, and the Executive Branch in implementing those
laws. This legislation will help to redress the balance, reclaiming for Congress some of its
policymaking authority, without at the same time requiring Congress to become a super
regulatory agency.8
As the first step in the congressional disapproval process, the CRA generally requires federal
agencies to submit their covered final rules to both houses of Congress and GAO before they can
take effect. Specifically, the first sentence of the CRA (Section 801(a)(1)(A)) states that,
Before a rule can take effect, the Federal agency promulgating such rule shall submit to each
House of the Congress and to the Comptroller General a report containing—(i) a copy of the
rule; (ii) a concise general statement relating to the rule, including whether it is a major rule;
and (iii) the proposed effective date of the rule.9
The CRA delays the effective dates of “major rules” even further—until 60 days after the date
that the rules are published in the Federal Register or submitted to Congress, whichever is later.10
The CRA defines a “major rule” as
any rule that the Administrator of the Office of Information and Regulatory Affairs of the
Office of Management and Budget finds has resulted in or is likely to result in—(A) an
8 Joint statement of House and Senate Sponsors, 142 Cong. Rec. S3683, at S3686 (daily ed. April 18, 1996), at 142
Cong. Rec. S3683.
9 5 U.S.C. §801 (a)(1)(A).
10 5 U.S.C. §801(a)(3).
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annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or
prices for consumers, individual industries, Federal, State, or local government agencies, or
geographic regions; or (C) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets. The term does not
include any rule promulgated under the Telecommunications Act of 1996 and the
amendments made by that Act.
The CRA also states that all non-major rules “shall take effect as otherwise provided by law after
submission to Congress under paragraph (1).”11 However, Section 808 states that,
Notwithstanding section 801—(1) any rule that establishes, modifies, opens, closes, or
conducts a regulatory program for a commercial, recreational, or subsistence activity related
to hunting, fishing, or camping, or (2) 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.
The “good cause” language in the second category of rules refers to an exception to the notice
and comment rulemaking requirement in the Administrative Procedure Act (APA), which allows
agencies to publish final rules without previously seeking comments from the public on an earlier
proposed rule.12 Interim final and direct final rules are considered particular applications of the
APA’s good cause exception.13
The issue of whether a court may prevent an agency from enforcing a covered rule that was not
reported to Congress has not been resolved conclusively.14
Covered Rules
Section 804(3) of the CRA generally defines a covered “rule” by referring to the definition in
Section 551 of the APA, which says that a rule is
the whole or a part of an agency statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency and includes the approval or
11 5 U.S.C. §801(a)(4).
12 See 5 U.S.C. §553(b)(3)(B). When agencies use the good cause exception, the act requires that they explicitly say so
and provide a rationale for the exception’s use when the rule is published in the Federal Register. A federal agency’s
invocation of the good cause exception (or other exceptions to notice and comment procedures) is subject to judicial
review.
13 Direct final rulemaking involves agency publication of a rule in the Federal Register with a statement that the rule
will be effective on a particular date unless an adverse comment is received within a specified period of time (e.g., 30
days). However, if an adverse comment is filed, the direct final rule is withdrawn and the agency may publish the rule
as a proposed rule under normal notice and comment procedures. In interim final rulemaking, an agency issues a final
rule without a prior notice of proposed rulemaking that is generally effective immediately, but with a post-
promulgation opportunity for the public to comment. If the public comments persuade the agency that changes are
needed in the interim final rule, the agency may revise the rule by publishing a final rule reflecting those changes.
14 For an analysis of the legal uncertainty adhering to an agency’s failure to report a covered rule to Congress, see CRS
Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of The Congressional
Review Act after a Decade, by Morton Rosenberg, pp. 28-34.
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prescription for the future of rates, wages, corporate or financial structures or reorganizations
thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs,
or accounting, or practices bearing on any of the foregoing.15
The CRA does, however, exclude certain types of rules from its coverage:
(A) any rule of particular applicability, including a rule that approves or prescribes for the
future rates, wages, prices, services, or allowances therefor, corporate or financial structures,
reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures
bearing on any of the foregoing; (B) any rule relating to agency management or personnel; or
(C) any rule of agency organization, procedure, or practice that does not substantially affect
the rights or obligations of non-agency parties.16
These limits notwithstanding, the scope of the CRA is extremely broad, including rules that are
exempt from notice-and-comment rulemaking procedures (e.g., interpretive rules, statements of
policy, and rules that are considered “proprietary” or that fall under the “military” or “foreign
affairs” exemptions in the APA).17 As noted in an earlier CRS report,
The legislative history of the CRA emphasizes that by adoption of the Section 551(4)
definition of rule, the review process would not be limited only to coverage of rules required
to comply with the notice and comment provisions of the APA or any other statutorily
required variations of notice and comment procedures, but would rather encompass a wider
spectrum of agency activities characterized by their effect on the regulated public: “The
committee’s intent in these subsections is ... to include matters that substantially affect the
rights or obligations of outside parties. The essential focus of this inquiry is not on the type
of rule but on its effect on the rights and obligations of non-agency parties.”18
Legislative History of the Rule Submission Requirement
The limited contemporaneous legislative history of the CRA suggests that the drafters of the
legislation intended that virtually all covered final rules be submitted to Congress before they
could take effect. A key sponsor of the legislation, Representative David McIntosh, explained
during the floor debate on the bill that would become the CRA (H.R. 3136 in the 104th Congress)
that “Under Section 8(a)(1)(A), covered rules may not go into effect until the relevant agency
submits a copy of the rule and an accompanying report to both Houses of Congress.”19 The same
day, Senator Don Nickles, another sponsor of the bill, said that “Upon issuing a final rule, a
Federal agency must send to Congress and GAO a report containing a copy of the rule.”20
15 5 U.S.C. §551(4).
16 5 U.S.C. §804 (3)(A-C).
17 Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 4th ed., (Chicago, IL: 2006), p. 187.
18 CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of The
Congressional Review Act after a Decade, by Morton Rosenberg, p. 21, quoting the joint statement of House and
Senate sponsors, 142 Cong. Rec. E571 at E579, and 142 Cong. Rec. S3683 at S3687.
19 142 Cong. Rec. H3005 (daily ed. March 28, 1996).
20 142 Cong. Rec. S3120 (daily ed. March 28, 1996).
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Post-Enactment Joint Statement
Shortly after the CRA was enacted, the principal Senate and House sponsors of the bill published
a joint statement in the Congressional Record providing a detailed explanation of the CRA’s
provisions and its legislative history. Senator Nickles explained that, because the legislation did
not go through the committee process, virtually “no other expression of its legislative history
exists.” He went on to say that “[t]his joint statement is intended to provide guidance to the
agencies, the courts, and other interested parties when interpreting the act’s terms.”21 (The Justice
Department has suggested that such post-enactment legislative history should not carry any
weight.22 Similarly, the Supreme Court has said that “less formal types of subsequent legislative
history provide an extremely hazardous basis for inferring the meaning of a congressional
enactment.”23 On the other hand, the Supreme Court has also described post-enactment
statements by legislative sponsors as an “authoritative guide to the statute’s construction.”24)
With regard to the rule submission requirement in the CRA, the sponsors’ joint statement said that
“any covered rule not submitted to Congress and the Comptroller General will remain ineffective
until it is submitted pursuant to subsection 801(a)(1)(A).”25 The only exception to this
requirement was in Section 808 of the act, which says that certain rules (i.e., rules related to
hunting, fishing, and camping, and for which the agency invokes the “good cause” exception to
notice and comment) can take effect when the promulgating agency determines. The joint
statement said that even these rules must be submitted to GAO and Congress “as soon as
practicable after promulgation,” and the congressional review period would not begin until they
are submitted.
Section 805 of the CRA states that “No determination, finding, action, or omission under this
chapter shall be subject to judicial review.” The joint statement said that this provision meant that
“the major rule determinations made by the Administrator of the Office of Information and
Regulatory Affairs of the Office of Management and Budget are not subject to judicial review.
Nor may a court review whether Congress complied with the congressional review procedures in
this chapter.” The joint statement went on to say that “The limitation on judicial review in no way
prohibits a court from determining whether a rule is in effect. For example, the authors expect
that a court might recognize that a rule has no legal effect due to the operation of subsections
801(a)(1)(A) or 801(a)(3).”26
21 Joint statement of House and Senate Sponsors, 142 Cong. Rec. E571, at E577 (daily ed. April 19, 1996); 142 Cong.
Rec. S3683, at S3686 (daily ed. April 18, 1996), at 142 Cong. Rec. S3683.
22 See letter dated June 11, 1997 to the Honorable Lamar Smith, Chairman, Subcommittee on Immigration and Claims,
Senate Judiciary Committee, from Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, DOJ, and
accompanying analysis dated June 10, 1997, at 10 n.14.
23 Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102 (1980). In this case, the “subsequent
legislative history” was a conference report for legislation that was being considered after the enactment of an earlier
statute.
24See, for example, North Haven Bd. of Education v. Bell, 456 U.S. 512, 526-27 (1982) (citing a bill summary placed in
the Congressional Record by the bill’s sponsor after passage, and explanatory remarks made two years later by the
same sponsor); Pacific Gas & Electric Co. v. Energy Resources Conservation and Development Commission, 461 U.S.
190, 211 n. 23 (1983)(relying on a 1965 explanation by “an important figure in the drafting of the 1957 [Atomic
Energy Act]”); and Grove City College v. Bell, 465 U.S. 555, 567 (1984) (remarks of sponsors deemed authoritative
when they are consistent with the language of the legislation).
25 Joint statement of House and Senate Sponsors, 142 Cong. Rec. S3683, at S3684 (daily ed. April 18, 1996).
26 Ibid, at S3686.
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OMB Guidance on the Rule Submission Requirements
In 1998, as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act
for 1999, Congress directed the Office of Management and Budget (OMB) to issue guidance on
certain requirements in the CRA, including the requirements in Section 801(a)(1) regarding the
submission of rules.27 On January 12, 1999, the Director of OMB issued a memorandum to the
heads of federal departments and agencies on “Submission of Rules under the Congressional
Review Act” in which he noted that the CRA requires agencies to submit each new final rule to
both houses of Congress and to GAO “before the rule can take effect.”28 The memorandum also
included a form that OMB and GAO developed to facilitate the submission of agency rules.
On March 30, 1999, the OMB Director issued another memorandum to the heads of federal
departments and agencies on “Guidance for Implementing the Congressional Review Act.”29 In
that guidance, OMB said that “In order for a rule to take effect, you must submit a report to each
House of Congress and GAO containing the following: a copy of the rule; a concise general
statement related to the rule, including whether the rule is a ‘major rule;’ and the proposed
effective date of the rule.” According to OMB, this guidance is still in effect.30
Also included in the March 1999 OMB guidance was a modified version of the rule submission
form previously provided to the agencies.31 Among other things, the current version of the form
asks agencies to identify the priority level of each rule—i.e., whether it is (1) “economically
significant,” “significant,” or “substantive”; or is (2) “routine and frequent” or
“informational/administrative” in nature.32 The form also asks agencies to identify whether or not
each rule is a “major rule” as that term is defined in the CRA. When agencies submit rules to
GAO, GAO enters them into a publicly available database that it maintains on its website.33 As of
September 30, 2009, GAO said it had received a total of 52,708 final rules since the CRA was
enacted, of which 865 were considered “major” rules.34
27 P.L. 105-277, 112 Stat. 2681-495, October 21, 1998.
28 OMB Memorandum M-99-07, January 12, 1999, available from the author.
29 OMB Memorandum M-99-13, March 30, 1999, available from the author.
30 E-mail from Steven D. Aitken, Deputy General Counsel, OMB, November 9, 2009, available from the author.
31 The current GAO rule submission form is available at http://www.gao.gov/decisions/majrule/fedrule2.pdf.
32 Executive Order 12866 defines a “significant” regulatory action as any such action “that is likely to result in a rule
that may: Have an annual effect on the economy of $100 million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; Create a serious inconsistency or otherwise interfere with an action taken
or planned by another agency; Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients thereof; or Raise novel legal or policy issues arising out of legal mandates,
the President’s priorities, or the principles set forth in this Executive order.” “Economically significant” rules meet the
first of these four criteria. “Substantive” rules are defined in the Unified Agenda of Federal Regulatory and
Deregulatory Actions as rules that are not “significant,” but also not routine and frequent or informational in nature.
33 The GAO rules database can be accessed at http://www.gao.gov/fedrules/.
34 E-mail from Sabrina Streagle, GAO Office of the General Counsel, October 6, 2009. GAO’s database indicates that
GAO had received a total of 46,992 rules as of September 30, 2009, but GAO said that about 5,700 rules were received
before the database was established.
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GAO Opinion on the CRA and the Effective Date of a Rule
GAO has said on numerous occasions that covered rules cannot take effect until the rules are
submitted to it and to both houses of Congress, and GAO has provided Congress with at least
nine legal opinions regarding whether certain agency actions constitute covered rules.35 Although
GAO has not provided Congress with a legal opinion regarding whether a particular missing non-
major rule could take effect, the agency has provided at least one legal opinion regarding when a
major rule can take effect. On January 18, 2002, the Centers for Medicare and Medicaid Services
within the Department of Health and Human Services (HHS) published a final rule in the Federal
Register entitled “Medicaid Program; Modification of the Medicaid Upper Payment Limit for
Non-State Government-Owned or Operated Hospitals,” which was scheduled to take effect on
March 19, 2002.36 However, the House of Representatives did not receive the rule until February
14, 2002, and the Senate did not receive the rule until March 15, 2002. Because the rule was
considered a major rule, the CRA says it could not take effect for 60 days from the date of
publication in the Federal Register or receipt of the rule by Congress, whichever is later.37
Therefore, by setting the effective date for March 19, 2002, the rule did not have the required 60-
day delay in its effective date. In an April 5, 2002, letter to Senator Edward Kennedy, GAO said,
While section 801(a)(3)(A) uses the phrase “receipt of the rule by Congress” in beginning
the computation of the 60-day delay provision, section 801(a)(1)(A) requires that “Before a
rule can take effect, the Federal agency promulgating such rule shall submit to each House of
Congress and the Comptroller General a report ….”
Section 801(a)(1)(A) makes clear that compliance with the requirements of the CRA
necessitates submission of a rule to both Houses of Congress. Therefore, in this instance, the
start of the 60-day delay period would have been March 15, 2002, the date of receipt by the
Senate. Accordingly, we find that the Medicaid rule should not be effective under the
provisions of the CRA until May 14, 2002.38
Early GAO Reviews Determined That Some
Covered Rules Were Not Being Submitted
Although it was not required to do so,39 in 1997, GAO conducted a review to determine whether
all of the rules that were published in the Federal Register from October 1, 1996, to July 31,
35 For a synopsis of these cases, see CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update
and Assessment of The Congressional Review Act after a Decade, by Morton Rosenberg, pp. 22-23.
36 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program;
Modification of the Medicaid Upper Payment Limit for Non-State Government-Owned or Operated Hospitals,” 67
Federal Register 2602, January 18, 2002.
37 5 U.S.C. §801(a)(3)(A). On March 19, 2002, HHS published a notice in the Federal Register delaying the effective
date of the Medicaid rule until April 15, 2002, in what GAO characterized as an attempt to comply with the CRA. See
U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program;
Modification of the Medicaid Upper Payment Limit for Non-State Government-Owned or Operated Hospitals: Delay of
Effective Date,” 67 Federal Register 12479, March 19, 2002.
38 This letter is available at http://www.gao.gov/decisions/other/289880.htm.
39 GAO’s only responsibility in the CRA (other than to receive rules that agencies are required to submit to it) is to
write a report on each “major” rule within 15 calendar days of the date that it is submitted. 5 U.S.C §801(a)(2)(A).
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1997, had been submitted to Congress and GAO.40 GAO ultimately concluded that 279 covered
rules published during this 10-month period had not been submitted, and in November 1997
provided a list of these rules to the Office of Information and Regulatory Affairs (OIRA) within
OMB.41 GAO said that OIRA distributed this list to the affected agencies and told them to contact
GAO if they had any questions.
In February 1998, because many of the rules remained unfiled, GAO said that it followed up with
each agency that still had missing rules. In March 1998 testimony before the Subcommittee on
National Economic Growth, Natural Resources, and Regulatory Affairs, House Committee on
Government Reform and Oversight, GAO said that 264 of the 279 rules had been submitted.
GAO also said the following:
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.... 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.42
Some rulemaking agencies took what GAO characterized as “immediate and corrective action” in
response to this review.43 For example, on January 7, 1998, the Environmental Protection Agency
(EPA) published nine final rules in the Federal Register changing the effective dates of rules that
had not been submitted in accordance with the requirements in Section 801(a)(1)(A) of the CRA.
In each of the rules, EPA noted that the CRA precludes a rule from taking effect until it is
submitted to GAO and each house of Congress, and said that EPA had inadvertently failed to do
so with regard to the subject rules. Although each of the rules had a designated effective date,
EPA said “by operation of law, the rule did not take effect” on that date. After EPA discovered
what it characterized as “its error,” the agency submitted the rules as required and amended the
effective dates “consistent with the provisions of the CRA.”44
GAO conducted a second review of agencies’ compliance with the CRA in June 1998, and
reported that 66 covered rules published during the five-month period from August 1, 1997, to
December 31, 1997, had not been submitted.45 GAO submitted the list of rules to OIRA, and
40 U.S. General Accounting Office, Congressional Review Act: Implementation and Coordination, GAO/T-OGC-98-
38, March 10, 1998, pp. 2-3.
41 GAO initially concluded that 498 rules had not been submitted, but later concluded that 182 were not covered rules
(e.g., because they were rules of particular applicability or agency management) and that 37 rules had, in fact, been
submitted. OIRA was created by the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35), and currently is
responsible for reviewing the substance of hundreds of regulations each year pursuant to Executive Order 12866. For
more information, see CRS Report RL32397, Federal Rulemaking: The Role of the Office of Information and
Regulatory Affairs, by Curtis W. Copeland.
42 U.S. General Accounting Office, Congressional Review Act: Implementation and Coordination, GAO/T-OGC-98-
38, March 10, 1998, p. 3.
43 Ibid.
44 See, for example, U.S. Environmental Protection agency, “Technical Amendments to Benzidine-Based Chemical
Substances; Significant New Uses of Certain Chemical Substances: Correction of Effective Date Under Congressional
Review Act (CRA),” 63 Federal Register 673, January 7, 1998. Corrections of effective dates for eight other rules were
on pages 682-691 of the same edition of the Federal Register.
45 U.S. General Accounting Office, Congressional Review Act: Update on Implementation and Coordination, GAO/T-
OGC-98-55, June 17, 1998, p. 3. GAO initially said that 115 rules had not been submitted, but later concluded that 25
were not covered rules and 24 had already been submitted.
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OIRA reportedly agreed to follow up with the agencies—which caused GAO to note that OIRA
appeared to have “become more involved” in the correction effort.
In December 1998, GAO published a notice in the Federal Register identifying “rules published
by Federal agencies in the Federal Register that were not received by [GAO] prior to the
announced effective dates.”46 The notice included all final and interim final rules covered by the
CRA that were issued between October 1, 1996, and December 31, 1997. GAO reported that
more than 300 non-major rules published during this period were not submitted to GAO prior to
their effective dates. The Departments of Agriculture and Transportation, and the Federal
Emergency Management Agency, issued about 60% of the rules that had not been submitted.47 By
the date of GAO’s Federal Register notice (nearly one year after the end of the time period
covered by the review), GAO said that it had received all of the rules.
GAO Has Repeatedly Notified OIRA That All Rules
Were Not Being Submitted
GAO has continued to compare its list of rules that agencies submit to the Comptroller General
with the list of rules that are published in the Federal Register to determine whether any covered
rules had not been submitted. However, GAO has not published a notice in the Federal Register
delineating those missing rules since 1998.48 Instead, GAO periodically sent letters to OIRA
regarding the substantive rules that it had not received.49 See the following examples:
• On September 21, 1999, GAO sent a letter to the Deputy Administrator of OIRA
identifying 31 substantive regulations that were published in the Federal Register
during calendar year 1998 that “have not been filed with us and, presumably,
have also not been filed with the Congress.”50
• On July 3, 2003, GAO sent a similar letter to the Deputy Administrator of OIRA
identifying 322 substantive regulations that were published during calendar years
2001 and 2002 but had not been filed with GAO.51
• On March 21, 2005, GAO sent another letter to the Deputy Administrator of
OIRA identifying 460 substantive regulations that were published during
calendar years 2003 and 2004 but were not filed with GAO.52
46 U.S. General Accounting Office, “Federal Agency Rules Filed Under Congressional Review Act Following General
Accounting Office Review of Unfiled Rules,” 63 Federal Register 71672, December 29, 1998. Until 2004, GAO was
the General Accounting Office.
47 The Department of Agriculture rules were primarily issued by the Federal Crop Insurance Corporation. The
Department of Transportation rules were primarily issued by the Federal Aviation Administration. The Federal
Emergency Management Agency’s rules primarily involved flood elevation determinations.
48 GAO said that continuing to publish the notices in the Federal Register was “not cost effective.” E-mail from Shirley
Jones, Assistant General Counsel, Government Accountability Office, November 13, 2009, available from the author.
49GAO said that the lists of rules that it provided to OIRA were “substantive” in that they did not include items such as
technical amendments to regulations that are printed in the Federal Register.
50 Letter from Kathleen E. Wannisky, Associate General Counsel for Operations, GAO, to Donald R. Arbuckle, Deputy
Administrator, OIRA, September 21, 1999, available from the author.
51 Letter from Kathleen E. Wannisky, Managing Associate General Counsel, GAO, to Donald R. Arbuckle, Deputy
Administrator, OIRA, July 3, 2003, available from the author.
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• On May 27, 2008, GAO sent another letter to the Administrator of OIRA
identifying 116 substantive regulations that were published during fiscal year
(FY) 2007 but “have not been submitted to us as required by Section
801(a)(1)(A).”53
In each of these letters, GAO noted the rule submission requirement in Section 801(a)(1)(A) of
the CRA, and said “We trust that your office will use this information to ensure that executive
agencies fully comply with [CRA] requirements by filing regulations with both the Congress and
GAO.”54 GAO officials said that OIRA did not respond to GAO with regard to any of these
letters, and GAO and OIRA officials said they were not aware of any effort by OIRA to contact
federal agencies regarding the missing rules during the time periods covered by these letters.55
GAO’s May 2009 Letter to OIRA
In the most recent letter on this issue, GAO notified the Acting Administrator of OIRA on May
26, 2009, that “a number of regulations have not been submitted to us as required by section
801(a)(1)(A) [of the CRA].”56 Enclosed with the letter was a list of 101 substantive rules that
were published in the Federal Register during FY2008 (i.e., October 1, 2007, through September
30, 2008) and that had not been submitted to GAO. Copies of that letter and the enclosed list of
rules are provided as Figure A-1 and Figure A-2 in an Appendix at the end of this report. Taken
together, the five GAO-OIRA letters covered seven one-year periods between 1998 and 2008, and
listed 1,030 substantive rules that were published in the Federal Register were not submitted to
GAO – an average of nearly 150 rules per year.
GAO said it did not send copies of any of these letters to congressional committees responsible
for oversight of the CRA, the administrative offices within each house of Congress that typically
receives rules from the agencies (i.e., the House Parliamentarian and the Secretary of the Senate),
or anyone else in Congress.57 GAO officials noted that it was not statutorily required to notify
Congress about this issue, but said GAO did mention that it had identified missing rules as part of
congressional testimony regarding the CRA in recent years.58
(...continued)
52 Letter from Kathleen E. Wannisky, Managing Associate General Counsel, GAO, to Donald R. Arbuckle, Deputy
Administrator, OIRA, March 21, 2005, available from the author.
53 Letter from Robert J. Cramer, Associate General Counsel, GAO, to Susan E. Dudley, Administrator, OIRA, May 27,
2008, available from the author.
54 GAO said that it sent other letters and lists of rules to OIRA for other years between 1998 and 2008, but could not
provide copies of those documents to CRS. GAO provided a copy of an April 10, 2001, letter to OIRA, but a
referenced list of unfiled substantive rules (covering the period from January 1, 2000, through December 31, 2000) was
not included.
55 Telephone conversations with GAO and OIRA officials, November 2009. One former OIRA official said he had a
vague recollection of contacting federal agencies and telling them to submit missing rules, but he could not provide any
details. Telephone conversation with Donald Arbuckle, November 9, 2009.
56 Letter from Robert J. Cramer, Managing Associate General Counsel, GAO, to Kevin F. Neyland, Acting
Administrator, OIRA, May 26, 2009, available from the author.
57 E-mail from Shirley Jones, Assistant General Counsel, Government Accountability Office, November 13, 2009,
available from the author.
58 For example, GAO noted that in a November 2007 statement for the record, GAO’s former General Counsel said that
“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
(continued...)
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Agencies and Issues
As indicated in Table 1 below, the missing rules from FY2008 were issued by many different
federal departments and agencies. However, the Departments of Agriculture, Commerce,
Defense, Homeland Security, and Transportation, as well as the General Services Administration,
each had more than five missing rules.
Table 1. Number of Substantive Final Rules Not Received by GAO, FY2008
Department/Agency
Number of Rules Not Received
Department of Agriculture (USDA)
20
Department of Commerce (DOC)
8
Department of Defense (DOD)
7
Department of Health and Human Services (HHS)
3
Department of Homeland Security (DHS)
7
Department of Housing and Urban Development (HUD)
1
Department of the Interior (DOI)
3
Department of State (DOS)
4
Department of Transportation (DOT)
12
Department of the Treasury
5
Department of Veterans Affairs (DVA)
1
Executive Office of the President (EOP)
2
General Services Administration (GSA)
9
Peace Corps
2
Pension Benefit Guarantee Corporation
2
Smal Business Administration
3
Other agencies (one rule each)
12
Total
101
Source: Letter from GAO to OIRA, May 24, 2009 (see Figures A-1 and A-2 in the Appendix to this report).
The subjects covered by the 101 missing rules from FY2008 were also varied. In addition to the
previously mentioned November 2007 DHS rule on chemical facility security, the missing rules
included the following:
• An October 2007 rule that was issued by the Food and Nutrition Service within
USDA on “Procurement Requirements for the National School Lunch, School
(...continued)
Federal Register the previous year that have not been filed with our Office.” U.S. Government Accountability Office,
Congressional Review Act, GAO-08-268T, November 6, 2007, p. 3. See also U.S. Government Accountability Office,
Federal Rulemaking: Perspectives on 10 Years of Congressional Review Act Implementation, GAO-06-601T, March
30, 2006, p. 4, in which GAO said that “roughly 200 nonmajor rules per year [are] not filed with our office.”
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Breakfast and Special Milk Programs.”59 According to the rule summary, it
makes “changes in a school food authority’s responsibilities for proper
procurement procedures and contracts, limits a school food authority’s use of
nonprofit school food service account funds to costs resulting from proper
procurements and contracts, and clarifies a State agency’s responsibility to
review and approve school food authority procurement procedures and
contracts.”60
• An October 2007 rule that was issued by the Fish and Wildlife Service within
DOI on “Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Guaj[oacute]n (Eleutherodactylus cooki).”61 According to the rule
summary, it designates critical habitat for the guajon (a rock frog endemic to
Puerto Rico) under the Endangered Species Act of 1973, as amended.
• A November 2007 rule that was issued by the Farm Service Agency (FSA) within
USDA on “Regulatory Streamlining of the Farm Service Agency’s Direct Farm
Loan Programs.”62 According to the rule summary, it “simplifies and clarifies
FSA’s direct loan regulations; implements the recommendations of the USDA
Civil Rights Action Team; meets the objectives of the Paperwork Reduction Act
of 1995; and separates FSA’s direct Farm Loan Programs regulations from the
Rural Development mission area’s loan program regulations.”63
• A December 2007 rule that was issued by the Equal Employment Opportunity
Commission (EEOC) on “Age Discrimination in Employment Act: Retiree
Health Benefits.”64 According to the rule summary, it allows employers to
“create, adopt, and maintain a wide range of retiree health plan designs, such as
Medicare bridge plans and Medicare wrap-around plans, without violating the
Age Discrimination in Employment Act of 1967 (ADEA). To address concerns
that the ADEA may be construed to create an incentive for employers to
eliminate or reduce retiree health benefits, EEOC is creating a narrow exemption
from the prohibitions of the ADEA for the practice of coordinating employer-
sponsored retiree health benefits with eligibility for Medicare or a comparable
State health benefits program.”65
• A December 2007 rule that was issued by the Office of Thrift Supervision (OTS)
within the Department of the Treasury on “Permissible Activities of Savings and
Loan Holding Companies.”66 One of the stated purposes of the rule is to “expand
59 U.S. Department of Agriculture, Food and Nutrition Service, “Procurement Requirements for the National School
Lunch, School Breakfast and Special Milk Programs, 72 Federal Register 61479, October 31, 2007.
60 Ibid., p. 61479.
61 U.S. Department of the Interior, Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants;
Designation of Critical Habitat for the Guaj[oacute]n (Eleutherodactylus cooki),” 72 Federal Register 60068, October
23, 2007.
62 U.S. Department of Agriculture, Farm Service Agency, “Regulatory Streamlining of the Farm Service Agency’s
Direct Farm Loan Programs,” 72 Federal Register 63242, November 8, 2007.
63 Ibid., p. 63242.
64 U.S. Equal Employment Opportunity Commission, “Age Discrimination in Employment Act: Retiree Health
Benefits,” 72 Federal Register 72938, December 26, 2007.
65 Ibid., p. 72938.
66 U.S. Department of the Treasury, Office of Thrift Supervision, “Permissible Activities of Savings and Loan Holding
Companies,” 72 Federal Register 72235, December 20, 2007.
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the permissible activities of savings and loan holding companies (SLHCs) to the
full extent permitted under the Home Owners’ Loan Act (HOLA).” The rule also
amended the agency’s existing requirements “to conform the regulation to the
statute that it is intended to implement, and to set forth standards that OTS will
use to evaluate applications submitted pursuant to the statutory application
requirement.”67
• A February 2008 rule that was issued by the National Oceanic and Atmospheric
Administration (NOAA) within DOC on “Endangered and Threatened Species:
Final Threatened Listing Determination, Final Protective Regulations, and Final
Designation of Critical Habitat for the Oregon Coast Evolutionarily Significant
Unit of Coho Salmon.”68 According to the rule summary, it was a “final
determination to list the Oregon Coast coho salmon (Oncorhynchus kisutch)
evolutionarily significant unit (ESU) as a threatened species under the
Endangered Species Act (ESA).” The agency said it was “also issuing final
protective regulations and a final critical habitat designation for the Oregon Coast
coho ESU.”69
• A February 2008 rule that was issued by the Bureau of Land Management (BLM)
within DOI on “Oil and Gas Leasing: National Petroleum Reserve – Alaska”
(NPR-A).70 According to the summary, the rule “amends the administrative
procedures for the efficient transfer, consolidation, segregation, suspension, and
unitization of Federal leases in the NPR-A. The rule also changes the way the
BLM processes lease renewals, lease extensions, lease expirations, lease
agreements, exploration incentives, lease consolidations, and termination of
administration for conveyed lands in the NPR-A. Finally, the rule makes the
NPR-A regulation on additional bonding consistent with the regulations that
apply outside of the NPR-A.”71
• An April 2008 rule issued by NOAA’s National Marine Fisheries Service on
“Endangered and Threatened Species: Designation of Critical Habitat for North
Pacific Right Whale.”72 According to the rule summary, the “North Pacific right
whale was recently listed as a separate, endangered species, and because this was
a newly listed entity, we were required to designate critical habitat for it.”73
• A June 2008 rule that was issued by the Office of the Secretary within DHS on
“Procedures for Transportation Workplace Drug and Alcohol Testing
67 Ibid, p. 72235.
68 U.S. Department of Commerce, National Oceanic and Atmospheric Administration, “Endangered and Threatened
Species: Final Threatened Listing Determination, Final Protective Regulations, and Final Designation of Critical
Habitat for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon,” 73 Federal Register 7816, February 11,
2008.
69 Ibid, p. 7816.
70 U.S. Department of the Interior, Bureau of Land Management, “Oil and Gas Leasing: National Petroleum Reserve –
Alaska,” 73 Federal Register 6430, February 4, 2008.
71 Ibid., p. 6430.
72 U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries
Service, “Endangered and Threatened Species; Designation of Critical Habitat for North Pacific Right Whale,” 73
Federal Register 19000, April 8, 2008.
73 Ibid., p. 19000.
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Programs.”74 According to the summary, the rule amends certain provisions of its
drug and alcohol testing procedures to “change instructions to collectors,
laboratories, medical review officers, and employers regarding adulterated,
substituted, diluted, and invalid urine specimen results. These changes are
intended to create consistency with specimen validity requirements established
by the U.S. Department of Health and Human Services and to clarify and
integrate some measures taken in two of our own Interim Final Rules. This Final
Rule makes specimen validity testing mandatory within the regulated
transportation industries.”75
• A July 2008 rule that was issued by the Transportation Security Administration
within DHS on “False Statements Regarding Security Background Checks.”76
According to the rule summary, it codifies statutory provisions that “prohibit
public transportation agencies, railroad carriers, and their respective contractors
and subcontractors from knowingly misrepresenting Federal guidance or
regulations concerning security background checks for certain individuals.”77
• September 2008 rule issued by the National Highway Traffic Safety
Administration (NHTSA) within DOT on “Nonconforming Vehicles Decided to
be Eligible for Importation.”78 According to the rule summary, it “revises the list
of vehicles not originally manufactured to conform to the Federal motor vehicle
safety standards (FMVSS) that NHTSA has decided to be eligible for
importation.”79
Submission of Missing Rules After GAO’s May 2009 Letter
CRS examined the GAO rules database on October 26, 2009, which indicated that GAO received
5 of the 101 missing rules after the date of the May 26, 2009, letter to OIRA:
• A May 2008 DHS rule establishing a security zone around any vessel being
escorted by one or more Coast Guard, State, or local law enforcement assets
within the Captain of the Port Zone Jacksonville, Florida, which GAO received
on June 5, 2009.80
• A June 2008 DOT rule clarifying the qualifications of individuals who certify by
signature the extended operations (ETOPS) pre-departure service check for
ETOPS flights operated by air carriers and in commuter and on-demand
passenger carrying operations, which GAO received on June 5, 2009.81
74 U.S. Department of Homeland Security, Office of the Secretary, “Procedures for Transportation Workplace Drug and
Alcohol Testing Programs, 73 Federal Register 35961, June 25, 2008.
75 Ibid., p. 35961.
76 U.S. Department of Homeland Security, Directorate of Border and Transportation Security, Transportation Security
Administration, “False Statements Regarding Security Background Checks,” 73 Federal Register 44665, July 31, 2008.
77 Ibid., p. 44665.
78 U.S. Department of Transportation, National Highway Traffic Safety Administration, “List of Nonconforming
Vehicles Decided to be Eligible for Importation,” 73 Federal Register 56741, September 30, 2008.
79 Ibid., p. 56741.
80 U.S. Department of Homeland Security, United States Coast Guard, “Security Zone; Escorted Vessels in Captain of
the Port Zone Jacksonville, FL,” 73 Federal Register 28707, May 19, 2008.
81 U.S. Department of Transportation, Federal Aviation Administration, “Extended operations (ETOPS) of Multi-
(continued...)
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Congressional Review Act: Rules Not Submitted to GAO and Congress
• A July 2008 Federal Trade Commission rule describing biodiesel and biomass-
based diesel automotive fuel labeling requirements, which GAO received on
October 4, 2009.82
• An August 2008 DOT rule amending certain rating definitions and type
certification standards for rotorcraft turbine engines, which GAO received on
June 5, 2009.83
• A September 2008 rule issued by the Department of the Treasury on “Risk Based
Capital Guidelines,” which GAO received on July 5, 2009.
The other 96 rules that were published during FY2008 that GAO said that it had not received
were still not listed in the GAO database as of October 26, 2009.
Congress Did Not Receive Most of the FY2008 Missing Rules
CRS also examined the House and Senate executive communication databases on October 26,
2009, which indicated that 80 of the 101 rules that GAO identified in its May 2009 letter to OIRA
had not been received by the House of Representatives, and 81 had not been received by the
Senate.84 Even though 20 of the 101 rules on GAO’s list of missing rules had been submitted to
Congress, the CRA says they cannot take effect until they are submitted to GAO as well.
Of the five rules that were submitted to GAO after the May 2009 letter to OIRA, three of the rules
had not been submitted to either House of Congress as of October 26, 2009.85 Therefore, 99 of the
101 rules that were identified in GAO’s May 2009 letter to OIRA had not been submitted in all
three locations (i.e., both houses of Congress and GAO).
OIRA’s Actions in November 2009 and Agencies’ Response
On October 20, 2009, CRS provided the Deputy Administrator of OIRA with a copy of GAO’s
May 2009 letter and enclosure listing the 101 missing rules, and asked whether OIRA had taken
any action in response to that letter. OIRA officials initially told CRS that it had no record of
having received the May 2009 letter from GAO.86 Subsequently, however, on November 12,
(...continued)
engine Airplanes,” 73 Federal Register 33879, June 16, 2008.
82 Federal Trade Commission, “Automotive Fuel Ratings, Certification and Posting; Final Rule,” 73 Federal Register
40154, July 11, 2008.
83 U.S. Department of Transportation, Federal Aviation Administration, “Airworthiness Standards: Rotorcraft Turbine
Engines One-Engine-Inoperative (OEI) Ratings, Type Certification Standards,” 73 Federal Register 48119, August 18,
2008.
84 The House executive communications database is available at http://www.congress.gove/execcomh, and the Senate
executive communications database is available at http://www.congress.gov/execcoms.
85 The two rules that were submitted to the House and the Senate were (1) the May 2008 DHS rule establishing a
security zone around any vessel being escorted by one or more Coast Guard, State, or local law enforcement assets
within the Captain of the Port Zone Jacksonville, Florida (received by the House of Representatives on May 29, 2008,
and by the Senate on February 9, 2009); and (2) the September 2008 rule issued by the Department of the Treasury on
“Risk Based Capital Guidelines” (received in the House of Representatives on June 26, 2009, and in the Senate on
April 16, 2009).
86 Telephone conversation with OIRA and OMB officials, November 6, 2009. However, GAO officials subsequently
told CRS that GAO had evidence that OIRA had received the list of missing rules by at least June 2009.
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2009, the Deputy Administrator of OIRA sent an e-mail to federal agencies saying that it “had
come to my attention that your agency may not have submitted final rules to Congress and to
[GAO] as required by the Congressional Review Act.” He urged the agencies to “contact the
GAO to determine which rules they have not yet received from your agency.” (The Deputy
Administrator did not, however, provide the agencies with a list of the missing rules, either
overall or for their agency.) He also noted in the e-mail that “agencies must submit all final rules
to Congress before they can take effect,” and provided the agencies with a copy of OMB’s 1999
guidance on the CRA.
The following week, representatives from GAO’s Office of the General Counsel told CRS that
federal agencies had begun submitting some of the missing rules listed in the May 2009 letter.87
As of November 20, 2009, GAO said it had been contacted by eight agencies regarding possible
missing rules (including one agency with no rules on the May 2009 list), and that three agencies
had recently submitted six of the missing rules—three from the Small Business Administration,
and one rule each from the Nuclear Regulatory Commission, the Securities and Exchange
Commission, and DVA.88
On December 21, 2009, CRS searched GAO’s database and determined that 18 of the missing
rules listed in the May 2009 letter had been received at GAO between November 23, 2009, and
December 17, 2009. Of these rules, five were submitted by DOT, and three each were submitted
by HHS and the Small Business Administration.
FY2009 Significant Rules Not Received by GAO
GAO said that it did not plan to send a letter to OIRA regarding missing rules that were published
during FY2009 until at least the end of calendar year 2009.89 To determine whether relatively
important rules that were published during FY2009 were being submitted to GAO as required in
the CRA, CRS used a publicly available database (at http://www.reginfo.gov) to identify
“significant”90 final rules (1) that were submitted to OIRA for review by cabinet departments or
EPA, (2) on which OIRA completed its review between October 1, 2008, and June 30, 2009,91
and (3) that were published in the Federal Register shortly after the completion of OIRA’s review.
87 GAO said it was not aware that OIRA had previously urged agencies to contact GAO regarding their missing rules.
Telephone conversation with Shirley Jones, Assistant General Counsel, Government Accountability Office, November
18, 2009.
88The SEC and DVA had copies of the coversheets that were submitted with the report, bearing a date stamp indicating
they had been previously submitted. Therefore, the database was corrected to reflect the earlier date.
89 To ensure that OIRA received this letter, GAO officials said they would send it by certified mail and would also send
an electronic version to OIRA.
90 Executive Order 12866 defines a “significant” regulatory action as one that is expected to “(1) Have an annual effect
on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or
communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another
agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s
priorities, or the principles set forth in this Executive order.” Only about 15% of all final rules that are submitted to
GAO are considered “significant” rules.
91 The June 30, 2009, cutoff date was used to allow sufficient time after publication in the Federal Register for the rules
to have arrived at GAO.
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As indicated in Table 2 below, of 181 significant rules that met those criteria, 22 of the rules
(12.2 %) had not been submitted to GAO as of November 17, 2009. Some of the rules had been
published in the Federal Register more than a year earlier, and all had been published at least four
months earlier.
Table 2. Significant Final Rules Reviewed by OIRA from October 2008 Through June
2009 and Not Received at GAO
Number of
Number of Rules
Significant Final
Not Received by
Department/Agency
Rules
GAO
Department of Agriculture (USDA)
24
12
Department of Commerce (DOC)
17
0
Department of Defense (DOD)
5
0
Department of Education (DOEd)
5
0
Department of Energy (DOE)
4
0
Department of Health and Human Services (HHS)
27
3
Department of Homeland Security (DHS)
11
2
Department of Housing and Urban Development (HUD)
3
0
Department of the Interior (DOI)
12
2
Department of Justice (DOJ)
12
1
Department of Labor (DOL)
14
0
Department of State (DOS)
0
0
Department of Transportation (DOT)
17
1
Department of the Treasury
5
0
Department of Veterans Affairs (DVA)
8
0
Environmental Protection Agency
17
1
Total 181
22
Source: CRS analysis of published rules with completed OIRA reviews between October 1, 2008, and June 30,
2009 (see http://www.reginfo.gov/public/do/eoHistoricReport), and GAO’s CRA database (see
http://www.gao.gov/fedrules/).
USDA had the most missing significant rules during this period, but there were differences in the
rates of submission between agencies and offices within USDA. For example, five of the seven
rules issued by USDA’s Commodity Credit Corporation (CCC) had not been submitted to GAO,92
and four of the six rules issued by the department’s Natural Resources Conservation Service
92 Some of these rules were issued pursuant to the Food, Conservation, and Energy Act of 2008 (the 2008 Farm Bill,
P.L. 110-234). Section 1601(c)(3) of the legislation required the Secretary of Agriculture to “use the authority provided
under section 808” of the CRA, which says that “Notwithstanding section 801, (1) any rule that establishes, modifies,
opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to
hunting, fishing, or camping, or (2) 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.” USDA invoked the good cause exception to notice and comment in at least two of these rules.
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(NRCS) had not been submitted. On the other hand, all four of the rules issued by USDA’s Food
and Nutrition Service had been submitted to GAO.
The subjects covered by these missing rules also varied, and included the following:
• A December 2008 USDA/CCC rule on “Farm Program Payment Limitation and
Payment Eligibility for 2009 and Subsequent Crop, Program, or Fiscal Years,”
which made “changes in payment eligibility, payment attribution, maximum
income limits, and maximum dollar benefit amounts for participants in CCC-
funded programs” as required by the Food, Conservation, and Energy Act of
2008 (the 2008 Farm Bill).93
• An October 2008 USDA/Forest Service rule on “Roadless Area Conservation,”
which “designates 250 Idaho Roadless Areas (IRAs) and establishes five
management themes that provide prohibitions with exceptions or conditioned
permissions governing road construction, timber cutting, and discretionary
mineral development.”94
• A January 2009 USDA/NRCS rule on the “Environmental Quality Incentives
Program” that “incorporate programmatic changes as authorized by amendments
in the Food, Conservation, and Energy Act of 2008.”95 USDA said this was a
“major” rule that was expected to have more than a $100 million annual impact
on the economy.
• A November 2008 HHS rule on “Patient Safety and Quality Improvement,”
which “establishes a framework by which hospitals, doctors, and other health
care providers may voluntarily report information to Patient Safety Organizations
(PSOs), on a privileged and confidential basis, for the aggregation and analysis of
patient safety events. The final rule outlines the requirements that entities must
meet to become PSOs and the processes by which the Secretary will review and
accept certifications and list PSOs. It also describes the privilege and
confidentiality protections for the information that is assembled and developed
by providers and PSOs, the exceptions to these privilege and confidentiality
protections, and the procedures for the imposition of civil money penalties for the
knowing or reckless impermissible disclosure of patient safety work product.”96
The rule reportedly implemented certain aspects of the Patient Safety and Quality
Improvement Act of 2005 (P.L. 109-41).
93 U.S. Department of Agriculture, Commodity Credit Corporation, “Farm Program Payment Limitation and Payment
Eligibility for 2009 and Subsequent Crop, Program, or Fiscal Years,” 73 Federal Register 79267, December 29, 2008.
94 U.S. Department of Agriculture, Forest Service, “Special Areas; Roadless Area Conservation; Applicability to the
National Forests in Idaho,” 73 Federal Register 61455, October 16, 2008.
95 U.S. Department of Agriculture, Natural Resources Conservation Service and Commodity Credit Corporation,
“Environmental Quality Incentives Program,” 74 Federal Register 2293, January 15, 2009. USDA said that “Section
2904(c) of the Food, Conservation, and Energy Act of 2008 requires that the Secretary use the authority in section
808(2) of title 5, United States Code, which allows an agency to forego [the CRA’s] usual 60-day Congressional
Review delay of the effective date of a major regulation if the agency finds that there is a good cause to do so. NRCS
hereby determines that it has good cause to do so in order to meet the Congressional intent to have the conservation
programs, authorized or amended by Title II, in effect as soon as possible.”
96 U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality, “Patient Safety and
Quality Improvement,” 73 Federal Register 70731, November 21, 2008.
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• A November 2008 HHS rule that made “technical changes to the existing
methodology and process used to compute and issue each State’s preliminary and
final allotments available to pay the Medicare Part B premiums for qualifying
individuals.”97 The department said the rule would “conform the existing
regulations to reflect continued funding of this program.”
• An October 2008 DHS rule on “Safe Harbor Procedures for Employers Who
Receive a No-Match Letter,” which reaffirmed regulations providing a “safe
harbor” from liability for employers that follow certain procedures after receiving
a notice that casts doubt on the employment eligibility of their employees.98
• An October 2008 DOI rule on “Implementation of the National Environmental
Policy Act (NEPA) of 1969,” which codified the department’s procedures for
implementing NEPA.99
• A December 2008 DOJ rule on “Revised Regulations for Records Relating to
Visual Depictions of Sexually Explicit Conduct,” which amended the “record-
keeping, labeling, and inspection requirements to account for changes in the
underlying statute made by Congress in enacting the Adam Walsh Child
Protection and Safety Act of 2006.”100
• A December 2008 DOT rule on “New Entrant Safety Assurance Process,” which
(among other things) “identifies 16 regulations that are essential elements of
basic safety management controls necessary to operate in interstate commerce
and makes a carrier’s failure to comply with any one of the 16 regulations an
automatic failure of the safety audit.”101 DOT said that the rule was “major”
under the CRA because it would have at least a $100 million impact on the
economy.
• An April 2009 EPA rule on “Endocrine Disruptor Screening Program,” which
described “the specific details of the policies and procedures that EPA generally
intends to adopt for initial screening under the EDSP, including the statutory
requirements associated with and format of the test orders, as well as EPA’s
procedures for fair and equitable sharing of test costs and handling confidential
data.”102
In one case, a rule that had been developed and published by more than one agency was
submitted to GAO by one agency, but not the others. On October 20, 2008, DOL, HHS, and the
97 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program;
State Allotments for Payment of Medicare Part B Premiums for Qualifying Individuals: Federal Fiscal Year 2008 and
Federal Fiscal Year 2009,” 73 Federal Register 70886, November 24, 2008.
98 U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, “Safe Harbor Procedures for
Employers Who Receive a No-Match Letter: Clarification; Final Regulatory Flexibility Analysis,” 73 Federal Register
63843, October 28, 2008.
99 U.S. Department of the Interior, Office of the Secretary, “Implementation of the National Environmental Policy Act
(NEPA) of 1969,” 73 Federal Register 61291, October 15, 2008.
100 U.S. Department of Justice, “Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit
Conduct,” 73 Federal Register 77431, December 18, 2008.
101 U.S. Department of Transportation, Federal Motor Carrier Safety Administration, “New Entrant Safety Assurance
Process,” 73 Federal Register 76471, December 16, 2008.
102 U.S. Environmental Protection Agency, “Endocrine Disruptor Screening Program; Policies and Procedures for
Initial Screening,” 74 Federal Register 17559, April 15, 2009.
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Department of the Treasury jointly issued a rule that established requirements “for group health
plans and health insurance issuers concerning hospital lengths of stay for mothers and newborns
following childbirth, pursuant to the Newborns’ and Mothers’ Health Protection Act of 1996 and
the Taxpayer Relief Act of 1997.”103 The Department of the Treasury submitted the rule to GAO,
but the DOL and HHS did not.
Related Legislation in the 111th Congress
On June 16, 2009, the House of Representatives passed H.R. 2247, the “Congressional Review
Act Improvement Act,” which would amend the CRA and eliminate the requirement that federal
agencies submit their covered rules and related reports to both Houses of Congress before such
rules can take effect. On June 17, 2009, the bill was referred to the Senate Committee on
Homeland Security and Governmental Affairs. If H.R. 2247 is enacted, covered rules and reports
would still have to be submitted to GAO, and GAO would be required to submit to each House a
weekly report containing a list of the rules received, including a notation identifying each major
rule. The Speaker of the House of Representatives would be required to publish the GAO report
in the Congressional Record. The House of Representatives passed identical legislation during the
110th Congress (H.R. 5593), but the Senate did not act on the bill before the end of the 110th
Congress.
According to the report on H.R. 2247 by the House Committee on the Judiciary, the bill “would
reduce reporting requirements for agencies that submit information to the legislative branch under
the Congressional Review Act (CRA).”104 Currently, agencies “must often resort to hand-
delivering the required materials by courier to the House and Senate, in order to comply with the
CRA and the standards regarding communications transmitted to Congress. Materials are
frequently returned to the promulgating agency for failure to comply with the CRA or these other
congressional requirements, delaying implementation of the rule.”105
It is possible that elimination of the requirement that agencies submit their rules and related
reports to the House and the Senate could increase the ability and willingness of agencies to
submit their rules to GAO, either electronically or otherwise.106 However, the data from FY2008
indicated that fewer rules were submitted to GAO than to either the House or the Senate.
103 U.S. Department of the Treasury, Internal Revenue Service, U.S. Department of Labor, Employee Benefits Security
Administration, and U.S. Department of Heath and Human Services, Centers for Medicare and Medicaid Services,
“Final Rules for Group Health Plans and Health Insurance Issuers Under the Newborns’ and Mothers’ Heath Protection
Act,” 73 Federal Register62410, October 20, 2008.
104 U.S. Congress, House Committee on the Judiciary, Congressional Review Act Improvement Act, report to
accompany H.R. 2247, 111th Cong., 1st sess., H.Rept. 111-150 (Washington: GPO, 2009), p. 5.
105 Ibid., p. 3.
106 GAO has said that has been able to receive CRA-covered rules and reports electronically since 1999, but that most
agencies do not do so because they must submit paper copies to the House and the Senate. See U.S. Government
Accountability Office, Congressional Review Act, GAO-08-268, November 6, 2007, p. 3. Also, in its May 27, 2008,
letter to the Administrator of OIRA, GAO noted that Congress was considering amendments to the CRA that would
eliminate the requirement that agencies submit rules to the Senate and the House of Representatives (H.R. 5593, 110th
Congress), and said if the bill was enacted into law, “we would welcome the opportunity to work with your office and
federal agencies to implement the law and make greater use of electronic submission of rules to our Office.” Letter
from Robert J. Cramer, Associate General Counsel, GAO, to Susan E. Dudley, Administrator, OIRA, May 27, 2008,
available from the author.
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Therefore, enactment of H.R. 2247 could have little effect on agencies’ compliance with the
CRA’s reporting requirements.
Analysis
Agency regulations generally start with an act of Congress, and are the means by which statutes
are implemented and specific requirements are established. Therefore, Congress has a vested
interest in overseeing the regulations that agencies issue pursuant to those statutes. Because
congressional authority over agency rulemaking was believed to have waned in recent decades
(while presidential authority over rulemaking had increased), the CRA was enacted in an attempt
to reclaim a measure of congressional control.107 Although Congress can learn about the issuance
of agency rules in many ways, the requirement in Section 801(a)(1)(A) of the CRA that agencies
submit all of their final rules to GAO and Congress before they can take effect helps to ensure
that Congress will have an opportunity to review, and possibly disapprove of, agency rules.
Notwithstanding this requirement, GAO said that it (and presumably Congress) did not receive
more than 1,000 final rules during 7 of the past 10 years. More recently, CRS discovered that
GAO did not receive 21 significant rules that were issued during FY2009. It is possible that some
of these rules were submitted by the rulemaking agencies, and are missing because of a problem
on the receiving end at GAO or Congress. However, because about two-thirds of the rules were
not received by GAO or either house of Congress, it seems more likely that the agencies did not
submit them as required by the CRA.
The CRA says that a Member of Congress can introduce a joint resolution of disapproval
regarding a rule “beginning on the date on which the report referred to in section 801(a)(1)(A) is
received by Congress.”108 Therefore, by not submitting these rules to Congress, the rulemaking
agencies have arguably prevented Congress from using the expedited disapproval authority that it
granted itself with the enactment of the CRA. The fact that Congress has used the CRA to
disapprove only one rule since the legislation was enacted109 does not lessen agencies’
responsibilities to submit their rules in accordance with the act’s requirements.
Despite the reporting requirements contained in the CRA, it appears that agencies have
implemented some, if not all, of these rules. Some of the rules have not been submitted for years.
For example, of the 31 missing rules that GAO identified in its 1999 letter to OIRA, 24 were not
listed in the GAO database in November 2009—more than 10 years after they were published and
scheduled to go into effect. Of the seven rules that were later submitted, some were not received
at GAO until years after they were published and scheduled to go into effect.110
107 Joint statement of House and Senate Sponsors, 142 Cong. Rec. S3683, at S3686 (daily ed. April 18, 1996), at 142
Cong. Rec. S3683.
108 5 U.S.C. §802(a).
109 In 2001, Congress disapproved a rule on ergonomics in the workplace. See U.S. Department of Labor, Occupational
Safety and Health Administration, “Ergonomics Program,” 65 Federal Register 68261, November 14, 2000. Although
the CRA has been used to disapprove only one rule, it may have other, less direct or discernable effects (e.g., keeping
Congress informed about agency rulemaking and preventing the publication of rules that may be disapproved).
110 See, for example, U.S. Department of Health and Human Services, Food and Drug Administration, “Amendment to
Examination and Investigation Sample Requirements,” 63 Federal Register 51297, September 25, 1998, which was not
submitted to GAO until October 22, 2002.
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Some of the missing rules were interim final or direct final rules, or were final rules in which the
agencies specifically invoked the “good cause” exception to the notice and comment
requirements in the APA. Section 808 of the CRA states that agencies can make their rules
effective “at such time as the Federal agency promulgating the rule determines” when the agency
invokes the good cause exception. Therefore, in these cases, the agencies would appear to be able
to put the rules into effect even though they had not been submitted to GAO and Congress.
However, as noted earlier in this report, the post-enactment legislative history of the CRA states
that even these rules must be submitted to GAO and Congress “as soon as practicable after
promulgation” to permit the congressional review period to begin.
The CRA currently gives both GAO and OIRA limited roles in the rule submission process.
OIRA is required to determine which rules are “major,”111 and GAO is to write a report on each
major rule within 15 calendar days.112 GAO has voluntarily taken on the task of determining
which Federal Register rules it has not received, and has periodically notified OIRA of these
missing rules. However, OIRA has not responded directly to GAO regarding most of these letters.
Also, GAO has not sent Congress copies of its letters to OIRA, or otherwise informed Congress
about the scope of this issue, and has not published a notice in the Federal Register regarding this
issue since 1998.
Congressional Options
Congress may conclude that agencies’ failure to submit all of their covered rules to GAO and
Congress is an administrative issue that should be resolved by GAO and OIRA, or by GAO and
the individual rulemaking agencies. Congress may also conclude that enactment of H.R. 2247
(allowing agencies to submit their rules only to GAO, perhaps electronically) will improve
agencies’ willingness or ability to submit all of their covered rules, and that no other action is
needed.
Should Congress want to take other actions to improve reporting of covered rules, it could
(among other things) (1) require GAO to continue to compare the rules it receives with the rules
that are published in the Federal Register, (2) require GAO to continue to report any missing
rules to OIRA, and (3) require OIRA or GAO to take other action to encourage agencies to
comply with the CRA’s reporting requirements. For example, GAO has said in the past that it
follows up with the agencies regarding any major rules that are missing.113 Congress could
require GAO to contact the agencies for the missing non-major rules as well, or could require
OIRA to contact the agencies. GAO and OIRA have each taken action in the past to contact
individual agencies, and could be required to do so again.114 Both GAO and OIRA have, however,
indicated to CRS that they currently have limited resources to take on additional responsibilities
for CRA compliance enforcement.
OIRA played a somewhat similar role in improving agencies’ compliance with the Paperwork
Reduction Act (PRA), which specifically requires OIRA to provide direction and oversee
111 5 U.S.C. §804 (2).
112 5 U.S.C. §801(a)(2)(A).
113 See U.S. Government Accountability Office, Congressional Review Act, GAO-08-268, November 6, 2007, p. 3.
114 As noted earlier in this report, GAO said that it and OIRA contacted individual agencies regarding missing rules in
1998.
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agencies’ information collection requests.115 In its annual reports to Congress on the
implementation of the PRA in the late 1990’s and early 2000’s, OIRA reported that there were
hundreds of violations of the act each year (i.e., agencies collecting information without OIRA
approval, or collecting information after such approvals had expired). For example, OIRA
reported that there were 872 violations of the PRA in FY1998, and 710 in FY1999. GAO
included information on these violations in its annual testimonies on the implementation of the
PRA.116 In 2001, OIRA began a concerted effort to drive down the number of violations,
requiring agencies to establish procedures to ensure that information was not collected without
OIRA authorization.117 By 2003, OIRA reported that there were only 18 PRA violations
government-wide.118
OIRA is described in Executive Order 12866 as “the repository of expertise concerning
regulatory issues, including methodologies and procedures that affect more than one agency, this
Executive order, and the President’s regulatory priorities.”119 The executive order also says that
the administrator of OIRA “shall provide meaningful guidance and oversight so that each
agency’s regulatory actions are consistent with applicable law....”120 OIRA is also uniquely
positioned both within OMB (with its budgetary influence) and within the federal rulemaking
process (reviewing and commenting on rules just before they are published in the Federal
Register) to enable it to exert maximum influence on federal agencies. In 1998, Congress directed
OIRA to issue guidance on the implementation of the CRA, and that guidance is still in effect.
Therefore, OIRA could play an integral role in ensuring compliance with the CRA and
implementation of the President’s and Congress’ regulatory priorities.
Also, GAO could be required to provide a copy of its CRA compliance reports to Congress,
publish the reports in the Federal Register, or both. Providing the reports of missing rules to
Congress would give Congress a clearer sense of how the CRA is being implemented, and could
permit Congress to conduct oversight of agencies compliance with the act. Publishing the lists of
missing rules in the Federal Register could provide an incentive to the agencies to comply with
the CRA.
115 44 U.S.C. §3504(a)(1)(B).
116 See, for example, U.S. General Accounting Office, Paperwork Reduction Act: Burden Increases at IRS and Other
Agencies, GAO/T-GGD-00-114, April 12, 2000.
117 See http://www.whitehouse.gov/omb/assets/omb/inforeg/pra_memo111401.pdf.
118 See http://www.whitehouse.gov/omb/assets/omb/inforeg/compliance_pra092704.pdf.
119 The President, Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, Section
2(b).
120 Ibid., Section 6(b).
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Appendix. GAO Documents
Figure A-1. GAO’s May 2009 Letter to OIRA
Source: GAO.
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Figure A-2. Enclosure to GAO’s May 2009 Letter to OIRA Listing 101 Missing Rules During FY2008
CRS-25
CRS-26
CRS-27
Source: GAO.
CRS-28
Congressional Review Act: Rules Not Submitted to GAO and Congress
Author Contact Information
Curtis W. Copeland
Specialist in American National Government
cwcopeland@crs.loc.gov, 7-0632
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