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. 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. Sixty-Day Delay and “Good Cause”

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. Definitions of Rules and Major Rules

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. Additionally, some agencies prepare rather comprehensive narrative reports on nonmajor rules. 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.
Why GAO Did This Study

GAO discussed its experience in fulfilling its responsibilities under the Congressional Review Act (CRA).

What GAO Found

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.