White House Tightens Central Review of New Agency Rulemaking

During the first year of the Trump administration, the Republican-controlled Congress revived the seldom-used 1996 Congressional Review Act to cancel numerous Obama administration regulations.

On Thursday, acting White House Budget Director Russell Vought hinted at plans for further use of that law’s authorities when he informed agency heads of new rulemaking review powers being given to the Office of Information and Regulatory Affairs.

The Congressional Review Act “establishes a mechanism by which Congress is able to exercise direct oversight of federal agency action in real time, consistent with its role as the sole constitutionally authorized legislative authority,” Vought wrote in his April 11 memo to all agency heads intended to “ensure more consistent compliance with [the act's] requirements across the executive branch.”

The key issue to be more closely monitored by OIRA is determining whether a proposed rule is “major,” meaning it would have annual effect on the economy estimated at $100,000,000 or more. A rule would also be "major" if it would involve a “major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions." Or it would be "major" if it might have “significant adverse effects on competition, employment, investment, productivity, innovation” or it could affect “the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets."

Building on past guidance from the Reagan administration and, more substantively, the Clinton White House approach, Vought noted that “at present, OIRA does not consistently receive from agencies the information necessary to determine whether a rule is major, in part because some regulatory actions are rules under the CRA are not submitted to OIRA through the centralized review process of [the 1993} Executive Order 12866.”

The memo announced: “To ensure faithful execution of its statutory duty, OIRA is instituting a systematic process to determine whether rules that would not be submitted to OIRA.”

Vought assigned agencies, “in consultation with OIRA desk officers,” a set of tasks ranging from notifying OIRA regularly of upcoming rules by submitting a list of planned rules, summaries and initial judgments on whether the coming rule is “major.”

“For rules the agency considers major and those rules not previously designated by OIRA as not major, the agency should submit the rule to OIRA for a CRA determination at least 30 days before the agency publishes the rule in the Federal Register or otherwise publicly releases the rule,” the memo said.

OIRA will review all the proposed rules before subjecting the major ones to the deeper review process and reporting the major ones to Congress, as intended under the CRA.

Vought stressed that the CRA applies to “more than just notice-and-comment rules; it also encompasses a wide range of other regulatory actions, including, inter alia, guidance documents, general statements of policy, and interpretive rules.” Exemptions include rule of narrow applicability to an agency or to its personnel or organization “that do not substantially affect the rights or obligations of non-agency parties."

Agencies are to begin compliance by May 11, and should consult with OIRA desk officer if there are questions.

OIRA is currently being run by acting administrator Paul Ray, who took over for Neomi Rao last month after she won confirmation as a judge on the U.S. Appeals Court for the District of Columbia.