CRS Reports on Agencies’ Failure to Submit Rules to GAO, Congress
The Congressional Research Service (CRS) has published a report discussing the failure of federal agencies to comply with the Congressional Review Act, which has, since 1996, required that they submit their final rules to both houses of Congress and the Government Accountability Office (GAO) before they can take effect. According to the report, CRS has identified some 1,000 final rules published in the Federal Register during seven of the past 10 years and not submitted to GAO and/or Congress.
Among the “missing” rules were (i) a U.S. Department of Agriculture (USDA) rule on national school lunch procurement requirements, (ii) a USDA rule on the Farm Service Agency’s direct farm loan programs, (iii) a USDA rule on farm program payment limitations and eligibility under the CCC program, (iv) the Environmental Protection Agency’s April 2009 rule on its “Endocrine Disruptor Screening Program,” describing the policies and procedures the agency intended to adopt for initial screening, and (v) USDA rules on importation of swine from Eastern Europe and brucellosis in cattle.
The 1996 law that required agencies to submit their rules to Congress was enacted “to reestablish a measure of congressional authority over rulemaking.” It provides a mechanism for Congress to disapprove agency final rules by means of a joint resolution of disapproval and it specifically provides that “[b]efore a rule can take effect,” it shall be submitted to Congress and the GAO. According to the CRS, the law’s House and Senate sponsors issued a joint statement after it was enacted to explain that “any covered rule not submitted . . . will remain ineffective until it is submitted.” The statement also suggests that courts “might recognize that a rule has no legal effect,” if the issuing agency failed to comply with the law.
According to OMB Watch, a government watchdog group, “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.” See OMBWatch.org, January 5, 2010.
