New memo outlines White House review of independent agencies and guidance documents

The White House may soon exercise more oversight of independent agencies like the Federal Reserve Board and the Securities and Exchange Commission (SEC). An April 11 guidance memo published by the acting director of the Office of Management and Budget (OMB) establishes rules for compliance with the Congressional Review Act (CRA). It amends earlier OMB guidance for implementing the CRA published in 1999 to affirm that Office of Information and Regulatory Affairs (OIRA) review procedures apply to historically independent agencies. It also states that some guidance documents fall within the definition of rules subject to the CRA.
The CRA is a 1996 law that requires agencies to submit rules to Congress before they go into effect. The law allows Congress to pass a joint resolution of disapproval to block a rule. If the president signs the resolution, then the agency rule is void and the agency cannot make a similar rule in the future without explicit congressional authorization.
The guidance memo tells agencies not to publish any rules in the Federal Register or anywhere else until both OIRA determines whether the rule is major and the agency has complied with the CRA.
The CRA defines major rules as those that have or are likely to have the following features:
  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, industries, government agencies, or geographic regions
  • Significant adverse effects on competition, employment, investment, productivity, innovation, or foreign trade competition
The memo affirms the broad scope of the CRA over administrative rules. Under Executive Order 12866, agencies have to submit any significant regulatory actions to OIRA for review. However, agencies do not submit all CRA-covered actions to OIRA. In addition to notice-and-comment rules, the new OMB memo says that agencies have to submit statements of policy and interpretive rules to OIRA and Congress. That includes guidance documents, which agencies often fail to submit for CRA review. The memo requires agencies to include a CRA compliance statement in the body of new rules, giving Congress notice that OIRA determined whether the rule was major.
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