- The Washington Times - Thursday, April 11, 2019

The Trump administration will take action Thursday to crack down on federal agencies’ ability to issue rules, memos and other documents that can have a binding regulatory effect without ever being reviewed by Congress.

Office of Management and Budget Acting Director Russell Vought is issuing new guidance to all agencies on complying with the Congressional Review Act, a 1996 law that requires “major” rules be submitted to Congress at least 60 days before they take effect.

A senior administration official told The Washington Times that the Trump administration has found, with Government Accountability Office reports, that “agencies sometimes under-comply with CRA.”

“We decided that some additional guidance from OMB is necessary to the agencies to help them comply with the law,” the official said in an exclusive interview. “Many agencies often don’t know how the CRA works. Agencies often don’t even know to ask.”

While the administration isn’t characterizing the move as a broadening of the CRA, the official said the action “will result in additional items being sent to the Hill.”

OMB’s action will replace guidance for a 1999 Clinton-era executive order that the official described as the “cornerstone of OMB review” standards. The official said the new action will “create a uniform set of procedures” by having OMB review all major rule determinations, even those from independent agencies.

OMB’s Office of Information and Regulatory Affairs has authority for the review of executive branch regulations and other proposals.

The CRA gives lawmakers the ability to reject proposed rules, which can cover anything from classifying independent contractors as employees to offering discounts on auto loans. The Competitive Enterprise Institute’s Clyde Wayne Crews Jr. has referred to such actions, often issued as bulletins or memos, as “regulatory dark matter” because they require compliance without ever having been subject to a period of public comment and review.

“When you’re a regulated party, if an agency is telling you ‘This is how I intend to enforce this rule,’ you’re going to treat it pretty much as binding,” said another administration official. “It often does impose very significant obligations.”

During the first 60 days of the Trump administration, congressional Republicans used the CRA to undo 14 of the Obama administration’s last-minute regulations, many involving new workplace burdens on employers.

In addition to proposed rules subject to “notice and comment,” the senior official said, “there are other regulatory actions and guidance documents that also fit within the definition of the scope of the Congressional Review Act.”

“This memo will make clear that those items also must go up to the Hill,” the official said.

The GAO reported in 2008 and 2009 that federal agencies had failed to submit more than 1,000 rules to Congress.

Heritage Foundation analyst Paul Larkin said federal agencies cannot say they weren’t warned about complying with the CRA.

“Federal agencies cannot demand that the public comply with the law, including agency rules, if the agencies are free to disregard the law and their own rules,” Mr. Larkin said.

He added that under the CRA, agency “rules” that have not been submitted to Congress as required are not “in effect” and therefore are null and void.

“Agencies therefore have an incentive to comply with the CRA so that their rules can have legal effect,” he said.

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