Whoops, Agencies Forget to Send Rules to Congress, Potentially Invalidating Them
by Matthew Madia, 1/5/2010
Hundreds of regulations may not officially have the force and effect of law because rulemaking agencies have not performed a simple procedural task, according to a Congressional Research Service (CRS) report issued last week.
Under the Congressional Review Act, a 1996 law that essentially gives Congress a window of opportunity to veto agency regulations, agencies must submit to Congress and the Government Accountability Office (GAO) copies of new final regulations.
Over the past 12 years, GAO has identified hundreds of rules that have been published in the Federal Register but have not been submitted to GAO. Although agencies are treating those rules as though they are in effect, the Congressional Review Act says rules may not take effect until they are submitted to Congress and GAO.
If the implementation of any regulation has to be halted or reversed because an agency failed to carry out the simple task of sending a piece of paper across town, it would be an extraordinary blunder. Regulations impact nearly every social sector and can provide benefits for consumers, workers, nonprofit organizations, businesses, and countless other constituencies. I had assumed this went without saying, but making sure regulations are actually valid is kind of important.
The revelations in the CRS report do not necessarily mean any regulation will be automatically or quickly undone. But, for better or for worse, many regulations may now be open to legal attack. If parties affected by improperly implemented regulations sue, courts could conceivably suspend regulatory requirements or fault agencies over procedure.
Agencies appear to be the most culpable for this potentially significant screw up. The CRA is clear that agencies must send a copy of new rules to Congress and the GAO. There is no excuse for failing to do so.
But, based on the CRS report, the White House Office of Information and Regulatory Affairs (OIRA) bears responsibility too. GAO, on numerous occasions, urged OIRA to prod agencies into submitting their rules to GAO and Congress. OIRA, the arm of the White House in charge of managing regulatory policy for the entire administration, was unmoved. After contacting agencies at least twice in the late 1990s, OIRA did nothing for most of the 2000s despite repeated letters from GAO, according to the CRS report.
GAO tried most recently in May 2009 when it wrote to OIRA identifying 101 rules published in the Federal Register in FY 2008 that had not been submitted to GAO. The report author, CRS specialist Curtis Copeland, writes that CRS contacted OIRA in October 2009 about the May letter but that OIRA claimed it had not received it.
"Subsequently, however, on November 12, 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.' "
Regardless, there is no reason this problem can’t be fixed quickly. The Congressional Review Act does not contain any apparent statute of limitations on the submission of rules, so, barring litigation, simply putting the rules in an envelope and sending them to GAO and Congress should do the trick.