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entitled 'Congressional Review Act' which was released on November 15, 
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Statement for the Record: 

Before the Subcommittee on Commercial and Administrative Law, Committee 
on the Judiciary, House of Representatives: 

United States Government Accountability Office: 

GAO: 

To accompany the Committee hearing record of Tuesday, November 6, 2007: 

Congressional Review Act: 

Statement of Gary Kepplinger, General Counsel: 

GAO-08-268T: 

Chairwoman Sanchez, Mr. Cannon, and Members of the Subcommittee: 

I am pleased to submit this statement for the record on the Government 
Accountability Office's responsibilities under the Congressional Review 
Act (CRA), and our processes and experiences in carrying out these 
responsibilities. CRA was designed to give Congress an opportunity to 
review a rule before it takes effect and to disapprove any rule to 
which Congress objects through the passage of a joint resolution with 
presentment to the President. 

Under CRA two types of rules, major and nonmajor, must be submitted to 
both Houses of Congress and GAO before either can take effect. 5 U.S.C. 
§ 801(a)(1)(A). CRA defines a "major" rule as one which has resulted in 
or is likely to result in (1) an annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, government agencies, or geographic regions; or 
(3) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of U.S.-based enterprises 
to compete with foreign-based enterprises in domestic and export 
markets. 5 U.S.C. § 804(2). CRA specifies that the determination of 
whether a rule is major is to be made by the Office of Information and 
Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB). 
Id. Major rules cannot be effective until 60 days after publication in 
the Federal Register or submission to Congress, whichever is later. 5 
U.S.C. § 801(a)(3).[Footnote 1] Nonmajor rules become effective when 
specified by the agency, but not before they are filed with the 
Congress. 5 U.S.C. § 801(a)(4). 

GAO's primary role under CRA is to provide the Congress with a report 
on each major rule containing GAO's assessment of whether the 
promulgating federal agency's submissions to GAO indicate that it has 
complied with the procedural steps required by various acts and 
Executive Orders governing the regulatory process. 5 U.S.C. § 
801(a)(2)(A). These steps include preparation of a cost-benefit 
analysis, where required, and compliance with the Regulatory 
Flexibility Act, the Unfunded Mandates Reform Act of 1995, the 
Administrative Procedure Act, the Paperwork Reduction Act, and 
Executive Order No. 12866. In addition, our Office provides a copy of 
each major rule to the interested audit or evaluation team within GAO 
to ascertain if GAO has any work relevant to the rule which should be 
brought to the attention of the Congress. GAO's report must be sent to 
the congressional committees of jurisdiction within 15 calendar 
days.[Footnote 2] 

CRA is silent as to GAO's role relating to the nonmajor rules. However, 
since we began receiving rules from federal agencies under CRA in 1996 
(Pub. L. No. 104-121, §§251-253, 110 Stat. 847, 868 (1996)), we have 
collected and made available to Congress and the public in a 
researchable database on our website certain basic information about 
major and nonmajor rules. This database contains information about the 
10 rules we receive on average each day, including the title of the 
rule, the agency, the Regulation Identification Number,[Footnote 3] the 
type of rule (major or nonmajor), the proposed effective date, the date 
published in the Federal Register, the congressional review trigger 
date, any joint resolutions of disapproval that may be enacted, and, in 
the case of major rules, a link to GAO's report on the rule. Since the 
enactment of CRA in 1996, through October 30, 2007, GAO has received 
46,136 rules and of those 703 were major rules for which we prepared 
reports for Congress. 

Standardized Submission Form: 

GAO has developed for agencies a standardized submission form, which 
allows for more efficient processing of rules delivered under CRA. 
Agencies now submit a standardized "Submission of Federal Rules under 
the Congressional Review Act" form with each rule submitted to GAO. The 
form includes the information required by CRA for agency reports 
accompanying submitted rules, such as the Department or Agency name, 
the title of the rule, the Rule Identification Number and whether or 
not the agency or OIRA considers the rule to be major. 5 U.S.C. § 
801(a)(1)(A). For major rules, the agency indicates which acts and 
Executive orders the agency determined were relevant to the rule, and 
whether or not information regarding compliance with these acts and 
orders is included in the rule as submitted. The form is available on 
the GAO's website and may be submitted electronically. The form is also 
available on the section of the OIRA website that offers guidance and 
forms to federal agencies.[Footnote 4] 

GAO Receipt of Rules: 

Federal agencies may use a variety of means to submit rules and reports 
to GAO, including hand-delivery, postal mail, facsimile or electronic 
mail. GAO has been able to receive agency rules and reports 
electronically since 1999, although only a handful of agencies have 
used this method to transmit rules. Our conversations with agencies 
indicate that this is attributable, in part, to the fact that the House 
of Representatives and the Senate require paper copies to be submitted 
to fulfill the agency's obligation under CRA. 

As noted earlier, a rule must be filed in accordance with CRA before it 
can become effective. 5 U.S.C. § 801(a)(1)(A). GAO has conducted yearly 
reviews to determine whether all final rules covered by CRA and 
published in the Federal Register were filed with GAO. We submit to 
OIRA each year a computer listing of rules we found published in the 
Federal Register the previous year that have not been filed with our 
Office. Additionally, GAO monitors the Federal Register daily for major 
rules under CRA to ensure that we receive all such rules. On the 
occasion that a major rule is published that has not been received by 
GAO, GAO promptly follows up with the agency to remind the agency of 
its responsibilities under CRA. 

Sixty Day Delay: 

A consistent difficulty in implementing CRA has been the failure of 
some agencies to delay the effective date of major rules for 60 days as 
required by CRA. 5 U.S.C. § 801(a)(3)(A). In 2007, eight of the forty- 
three major rules we have reviewed to date have not allowed for the 
required 60-day delay. We find agencies are not budgeting enough time 
into their regulatory timetable to allow for the statutory delay. In 
one of these cases, the agency, Federal Energy Regulatory Commission, 
delayed the effective date of its rule to comply with CRA. 72 Fed. Reg. 
31,452 (June 7, 2007). 

Conclusion: 

We look forward to fulfilling GAO's continuing responsibilities under 
CRA and to working with the subcommittee in the future in its continued 
oversight of CRA processes and procedures. 

[End of section] 

Appendix I: Rules Received Under CRA by Fiscal Year: 

Fiscal Year: 1996[A]; 
All Rules: 2,059; 
Major Rules: 35. 

Fiscal Year: 1997; 
All Rules: 3,932; 
Major Rules: 59. 

Fiscal Year: 1998; 
All Rules: 4,746; 
Major Rules: 70. 

Fiscal Year: 1999; 
All Rules: 4,560; 
Major Rules: 58. 

Fiscal Year: 2000; 
All Rules: 4,619; 
Major Rules: 65. 

Fiscal Year: 2001; 
All Rules: 4,038; 
Major Rules: 81. 

Fiscal Year: 2002; 
All Rules: 3,736; 
Major Rules: 52. 

Fiscal Year: 2003; 
All Rules: 4,238; 
Major Rules: 48. 

Fiscal Year: 2004; 
All Rules: 4,139; 
Major Rules: 63. 

Fiscal Year: 2005; 
All Rules: 3,888; 
Major Rules: 64. 

Fiscal Year: 2006; 
All Rules: 3,058; 
Major Rules: 54. 

Fiscal Year: 2007; 
All Rules: 3,092; 
Major Rules: 51. 

Fiscal Year: Total; 
All Rules: 46,105; 
Major Rules: 700. 

Source: GAO Federal Rules Database. 

[A] Reporting under the act began when CRA was passed on March 29, 
1996. 

[End of table] 

Footnotes: 

[1] Under CRA a delay in the effective date for rules does not apply in 
the case of rules related to hunting, fishing, or camping, or to rules 
where an agency finds "good cause." 5 U.S.C. § 808. 

[2] In response to Congressional requests, we also have issued to the 
Congress eight legal opinions on whether or not an agency action is a 
rule as defined by CRA (B-292045, May 19, 2003; B-291906, February 28, 
2003; B-287557, May 14, 2001; B-286338, October 17, 2000; B-281575, 
January 20, 1999; B-278224, November 10, 1997; B-275178, July 3, 1997; 
B-274505, September 16, 1996), and an additional opinion interpreting 
the 60-day delay period for major rules. B-289880, April 5, 2002. 

[3] The Regulatory Information Service Center assigns a Regulation 
Identification Number (RIN) to identify each regulatory action listed 
in the Unified Agenda of Federal Regulatory and Deregulatory Actions. 
OMB has asked agencies to include RINs in the headings of their Rule 
and Proposed Rule documents when publishing them in the Federal 
Register, to make it easier for the public and agency officials to 
track the publication history of regulatory actions throughout their 
development. 

[4] The form is available at [hyperlink, 
http://www.whitehouse.gov/omb/inforeg/regpol-agency_review.html](last 
visited November 7, 2007). 

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