Prior to the March 10 hearing, GAO conducted a review to determine whether all final rules covered by CRA and published in the Federal Register were filed with the Congress and GAO. Our review covered the 10-month period from October 1, 1996, to July 31, 1997. In November 1997, we submitted to OIRA a computer listing of the rules that we found published in the Federal Register but not filed with our Office. OIRA distributed this list to the affected agencies and departments and instructed them to contact GAO if they had any questions regarding the list. Beginning in mid-February, because 321 rules remained unfiled, we followed up with each agency that still had rules which were unaccounted for. OIRA did not participate in the follow-up effort. Our Office experienced varying degrees of responses from the agencies. Overall, our review disclosed, as of the March 10 hearing, that:
279 rules should have been filed with us; 264 of these have subsequently
182 were found not to be covered by CRA as rules of particular applicability or agency management and thus were not required to be filed;
37 rules had been submitted timely and our database was corrected; and
15 rules from six agencies had not been filed. Last week, our Office concluded a second review covering the 5-month period from August 1, 1997, to December 31, 1997, which we conducted in the same manner as the prior review. First, the number of unfiled rules which should have been filed were 66 for the 5-month period. This is down markedly from the 279 for the prior 10-month review, thus indicating a more concerted effort on the part of the agencies to fulfill their responsibilities under CRA. Secondly, OIRA has become more involved and conducted the follow-up contacts with the agencies after OIRA’s distribution of the initial list. While we are unaware of any rule that OIRA deliberately misclassified to avoid the major rule designation, mistakes have been made in major rule classifications. Also, the failure of agencies to identify some issuances as “rules” at all has meant that some major rules have not been identified. We believe that OIRA should: develop a standardized reporting format that can readily be incorporated into GAO’s database providing the information of most use to the Congress, the public, and GAO; establish a system to monitor compliance with the filing requirement on an 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) and its efforts to coordinate implementation of the Act with the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA).

What GAO Found

GAO noted that: (1) under CRA two types of rules, major and nonmajor, must be submitted to both Houses of Congress and GAO before either can take effect; (2) CRA specifies that the determination of what rules are major is to be made by OIRA; (3) its primary role under 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; (4) although the law is silent as to GAO's role relating to the nonmajor rules, it 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 a database that gathers basic information about the 15-20 rules GAO receives on the average each day; (6) 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; (7) the review, covering the 10-month period from October 1, 1996, to July 31, 1997, identified 498 rules from 50 agencies that were not properly submitted for congressional review; (8) GAO submitted the list to OIRA in November 1997; (9) OIRA distributed this list to the affected agencies and instructed them to contact GAO if they had any questions; (10) beginning in mid-February, because 321 rules remained unfiled, GAO followed up with each agency that had rules unaccounted for; (11) OIRA did not participate in the follow-up effort; (12) GAO's office experienced varying degrees of responses from the agencies during the followup; (13) GAO conducted a second review covering the 5-month period from August 1, 1997, to December 31, 1997; (14) GAO noted two areas of improvement: (a) the number of unfiled rules which should have been filed were 66, down from the 279 for the prior 10-month review, indicating a more concerted effort by agencies to fulfill their responsibilities under CRA; and (b) OIRA has become more involved and conducted the follow-up contacts with agencies after distribution of the list; (15) while GAO is unaware of any rule the OIRA deliberately misclassified to avoid the major rule designation, mistakes have been made in major rule classifications; and (16) the failure of agencies to identify some issuances as rules at all has meant that some major rules have not been identified.