Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process.
The CRA requires federal agencies to send newly adopted rules to the House and Senate before the rules become effective. This enables both houses the opportunity to adopt a joint resolution disapproving the rule. If both houses adopt such a resolution, it is sent to the President for his signature or veto. Although only one rule was disapproved under the CRA in its first 20 years of existence, in the first year of the Trump administration, some 14 regulations were disapproved under the CRA.
The CRA specifically defines "rule" and "federal agency" to mean the same as the definition of "rule" and "agency" in the Administrative Procedure Act (APA). It then exempts in whole or in part certain types of rules from its requirements, notably all the rules that the APA exempts from notice and comment rulemaking, except interpretive rules and general statements of policy.
Despite the language of the CRA that clearly includes guidance documents as rules subject to its provisions, many, if not most, agencies did not send guidance documents to the House ...