Report urges OMB to identify rules in risk of not complying with congressional review at end of presidential administrations

Economically significant regulations at potential risk of not complying with the Congressional Review Act (CRA) during the closing days of a president’s administration should be identified by the Office of Management and Budget (OMB) to ensure compliance, a congressional watchdog said Tuesday.

In a report, (OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents’ Terms) the Government Accountability Office (GAO) said that, during transition periods at the end of presidential administrations, agencies published more final regulations and more frequently provided advanced notice to the public on those regulations compared to non-transition periods.

GAO said that studies have found that federal agencies issue more regulations shortly before a president leaves office. This is often called “midnight rulemaking.”

“We looked at the last 120 days of the Clinton, Bush, and Obama administrations and compared the activity level to non-transition years,” GAO stated. The congressional watchdog said it found agencies in these periods:

  • published about 2.5 times as many regulations;
  • were more likely to provide advanced notice and opportunities for public comment; and
  • were less likely to provide Congress the required time to review and possibly disapprove a regulation.

Under the CRA Congress may disapprove agencies’ regulations by introducing a resolution of disapproval that, if adopted by both Houses of Congress and signed by the President, can nullify an agency’s action. CRA states that an agency may not reissue the regulation in “substantially the same form,” as a regulation Congress disapproved. Congress has 60 business from rule’s effective date to take action.

The report notes that agencies likely to highly comply with other requirements when issuing rules at the end of an administration, but less likely to comply with CRA.

The most common CRA deficiency, GAO stated, was agencies’ failure to provide Congress the “required time to review and possibly disapprove regulations, which GAO has also identified as a deficiency in previous work.”

The report added that economically significant regulations for which OMB completed its review within three months before the planned effective date were at high risk of not complying with CRA, thus increasing the risk that agencies would not provide Congress with the required time for its reviews.

Highlights: OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents’ Terms