The 1999 OMB memo did not expressly reach agency guidance documents, so the new OMB memo contains a new, important interpretation of the CRA.
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arranged by agency.
Steven Terner Mnuchin was sworn in as the 77th Secretary of the Treasury on February 13, 2017.
First, the new OMB memo adopts an expansive interpretation of a “rule.” The memo’s definition embraces any complete or partial agency “statement . 0000001235 00000 n All told, they combined to eliminate more than a dozen rules adopted during the Obama Administration, and one adopted by an independent agency after Trump became President. As former OIRA official and now George Washington University Professor Bridget Dooling has noted, the OMB memo “casts a long shadow over already-issued guidance documents and will set off a fresh scramble to determine their status.” Some lawsuits are already in progress; more are likely.
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Once an agency does so, a clock starts, allowing members a limited time to introduce a joint resolution of disapproval of the rule and then have each chamber vote on it without fear of a Senate filibuster. xref To prevent gamesmanship, the agency cannot re-adopt the nullified rule or one that is “substantially similar” unless Congress passes new authorizing legislation. Two years after any presidential election, whatever the federal government does that goes wrong will be blamed on the incumbent administration. To challenge a guidance document, an affected party must generally—with some exceptions— await an agency enforcement action taken on the basis of the guidance, because only then is there a “final agency action.” The result is that agencies can use rules not for “guidance,” but for their in terrorem effect on regulated parties. ���pSt� �\I�O�ǡ Ӕ�ОPTVt*/�ް3ϙ3�C�U\� �i�"xJ��lG�Pi�{D�|4U�E�Aŭ{o�6�6C��it2C��!9#I��)�M����'��5W�L�u��`Uq����- b�깛��&^b� �s�7�c�[���d�T�O0��"��;҃�sh�f�M3t=|L�C��Ʈmz�F��U�b��M� 9�Rb�B����9�k���J��[6����t��t�Lg0���q����w��m�M�ˑ�,;�L�j�O� l9�'
OMB’s recent memo—which supersedes a 1999 OMB memo on that subject—is an important step in the effort to improve regulatory lawmaking, for three reasons. 0000001658 00000 n See the disclosure page for more information. Memorandum for the Heads of Executive Departments and Agencies,
Consider what that means: For 23 years agencies have invoked a massive number of invalid rules in formal or informal enforcement actions against, or jawboning with, regulated parties.
That amounts to lawless regulatory conduct on a huge scale.
Reginfo.gov includes a Regulatory Review Dashboard that graphically presents information about rules under OIRA review through an easy-to-use interactive display. Presidents and independent agencies have butted heads before, and that political battle will continue.
If the President signs the resolution (or if Congress overrides the President’s veto), the rule is nullified.
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Department of AgricultureDepartment of CommerceDepartment of DefenseDepartment of EnergyDepartment of Health and Human ServicesDepartment of Homeland SecurityDepartment of Housing and Urban DevelopmentDepartment of the InteriorDepartment of JusticeDepartment of LaborDepartment of StateDepartment of TransportationDepartment of the TreasuryDepartment of Veterans AffairsEnvironmental Protection AgencyFederal Permitting Improvement Steering CouncilSmall Business AdministrationSocial Security Administration
0000006394 00000 n 0000000656 00000 n A broad interpretation would reach beyond “legislative rules,” also known as regulations, which have the “force and effect of law,” and would include “interpretive” rules—sometimes called “regulatory dark matter”—such as agency guidance documents.
The CRA requires federal agencies, executive and independent alike, to submit every agency “rule” to Congress (and the U.S. Government Accountability Office) before it can go into effect. This practice is highly debatable. But only time will tell. ��w�G� xR^���[�oƜch�g�`>b���$���*~� �:����E���b��~���,m,�-��ݖ,�Y��¬�*�6X�[ݱF�=�3�뭷Y��~dó ���t���i�z�f�6�~`{�v���.�Ng����#{�}�}��������j������c1X6���fm���;'_9 �r�:�8�q�:��˜�O:ϸ8������u��Jq���nv=���M����m����R 4 �
The extent to which OIRA has the authority to engage in pre-publication review of proposed independent agency rules is also important but controversial.