Federal rulemaking agencies continue to fail to submit new regulations to Congress, potentially invalidating them, according to the Government Accountability Office (GAO) and the Congressional Research Service (CRS).

According to a December 2009 CRS report, in FY 2008, 28 federal agencies and cabinet departments failed to send copies of 101 final rules to GAO, the investigative arm of Congress. As of Oct. 26, 2009, 96 of the 101 rules still had not been submitted, raising questions about their legality. The problem was not limited to 2008; agencies have been forgetting to send rules to GAO since the late 1990’s.

Why is this step important? Typically, when agencies publish final rules in the Federal Register, they also identify a future date when the rule will take effect, often 30 or 60 days after the publication date. When the rule takes effect, it is considered to have the full force of law. However, the Congressional Review Act (CRA), passed in 1996, added another step that requires that final rules "shall be submitted to Congress before a rule can take effect." The act also requires submission to the Comptroller General, the head of GAO. (Click here for more.)

According to a new CRS report, 31 rules were not submitted to GAO during FY 2009. In January, GAO contacted the White House Office of Information and Regulatory Affairs (OIRA) to alert officials of the 31 missing rules, according to CRS. Since then, 26 of the 31 have been submitted to GAO, eliminating any possible legal questions about their validity.

While it is obvious a problem still exists, evidence indicates progress is being made to bring agencies into full compliance with the CRA’s submission requirement. Agencies’ failure to send 31 rules in FY 2009 appears exemplary when compared to the 101 missing rules from FY 2008.

OIRA may deserve credit here. After many years of dodging responsibility for this issue, OIRA is now more regularly communicating with agencies about the CRA submission issue. BNA news service (subscription) reports:

OIRA officials told CRS that after receiving GAO's January 2010 letter, the deputy administrator of OIRA sent an e-mail to federal agencies that reminded them of their obligation to submit their rules to GAO and Congress, and provided another copy of OMB's 1999 guidance on the Congressional Review Act.

They also said that OIRA planned to send similar e-mails twice each year to agency regulatory officials, and planned to give GAO a list of those agency officials so that GAO could resolve any concerns about unsubmitted rules more quickly, the CRS report stated. Finally, OIRA officials said they planned to raise the issue of compliance with the CRA at meetings of the regulatory working group, the report stated. 

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