United States Government Accountability Office

GAO Testimony 

Before the Subcommittee on Commercial 

and Administrative Law, Committee on 

the Judiciary, House of Representatives

FEDERAL RULEMAKING

Perspectives on 10 Years of 

Congressional Review Act 

Implementation 

Statement of J. Christopher Mihm, 

Managing Director, Strategic Issues 

For Release on Delivery

Expected at 2 p.m. EST 

Thursday, March 30, 2006

 

GAO-06-601T 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

March 30, 2006

FEDERAL RULEMAKING 

Perspectives on 10 Years of 

Congressional Review Act 

Implementation 

Highlights of GAO-06-601T, testimony to 

the Subcommittee on Commercial and 

Administrative Law, Committee on the 

Judiciary, House of Representatives 

This year marks the 10th

anniversary of the Congressional

Review Act (CRA). Congressional 

oversight of rulemaking using the 

CRA can be an important and 

useful tool for monitoring the 

regulatory process and balancing 

and accommodating the concerns

of American citizens and 

businesses with the effects of 

federal agencies’ rules. This 

statement provides an overview of 

the purpose and provisions of CRA; 

GAO’s role and activities in 

fulfilling its responsibilities under 

the Act; and trends on CRA within 

the broader context of

developments in presidential and 

congressional oversight of federal

agencies’ rulemaking. 

CRA gives Congress an opportunity to review most rules before they take 

effect and to disapprove those found to be too burdensome, excessive, 

inappropriate, duplicative, or otherwise objectionable. Under CRA, two 

types of rules, major and nonmajor, must be submitted to both Houses of 

Congress and GAO before they can take effect. The Office of Information 

and Regulatory Affairs (OIRA) of the Office of Management and Budget 

specifies which rules are designated as major rules based on criteria set out 

in the CRA. Major rules cannot be effective until 60 days after publication in 

the Federal Register or submission to Congress and GAO, whichever is later.

Congress may disapprove agencies’ rules by introducing a resolution of 

disapproval that, if adopted by both Houses of Congress and signed by the 

President, can nullify an agency’s rule. Members of Congress seldom have 

attempted to use this process. 

GAO’s role under CRA is to provide Congress with a report on each major 

rule concerning GAO’s assessment of the promulgating federal agency’s 

compliance with the procedural steps required by various acts and executive

orders governing the regulatory process. GAO compiles information on the 

rules it receives under CRA in a database containing basic information about 

major and nonmajor rules. GAO also conducts an annual review to

determine whether all final rules covered by the Act and published in the 

Federal Register have been filed with the Congress and GAO. Although we 

reported that agencies’ compliance with CRA requirements was inconsistent 

during the first years after CRA’s enactment, compliance improved over 

time. 

There have been a limited number of CRA joint resolutions, but the benefits 

of compiling and making information available on potential federal actions 

should not be underestimated. The procedures for congressional disapproval 

also may have some deterrent effect. Efforts to enhance presidential 

oversight of agencies’ rulemaking appear to have been more significant and 

widely employed in recent years than similar efforts to enhance

congressional oversight. Some recent legislative proposals have focused on 

expanding the information and analysis available to Congress on pending 

rules, while others focus on enhancing the mechanisms that Congress could 

employ for its own review—and potential disapproval—of agencies’ rules. 

Facts on CRA since Its Enactment on March 29, 1996 

• 37 Joint Resolutions of Disapproval introduced affecting 28 rules 

• 1 rule nullified by Congress through Joint Resolution procedures

• 610 major rules received and reported on by GAO 

• 41,218 nonmajor rules entered into GAO database

• About 200 nonmajor rules per year not filed with GAO 

• All 610 major rules filed with GAO in a timely fashion 

• 71 of 610 major rules—effective date not delayed for required 60 days 

www.gao.gov/cgi-bin/getrpt?GAO-06-601T.

To view the full product, click on the link 

above. For more information, contact 

J. Christopher Mihm at (202) 512-6806 or 

mihmj@gao.gov.
Mr. Chairman and Members of the Subcommittee: 

I am pleased to appear before you today on the 10th anniversary of the 

enactment of the Congressional Review Act (CRA).1

 As you know, CRA 

was enacted to ensure that Congress has an opportunity to review, and 

possibly reject, rules before they become effective. Under CRA, two types 

of rules, major and nonmajor, must be submitted to both Houses of 

Congress and GAO before they can take effect. We are required to provide 

Congress with a report on each major rule concerning our assessment of 

the promulgating federal agency’s compliance with the procedural steps 

required by various acts and executive orders governing the regulatory 

process. 

Over the past 10 years, agencies have submitted information on thousands

of rules as required by the CRA. Although we generally found that agencies 

complied with CRA’s requirements, one main area of noncompliance has 

been that agencies have not always delayed the effective date of their 

major rules for 60 days, as required by the Act. While considerable 

information on agencies’ rules has been reported under CRA, to date 

Congress has used the Act to disapprove only one rule, the Department of 

Labor’s rule on ergonomics in 2001. In contrast, our reviews indicated that 

efforts to increase presidential influence and authority over the regulatory

process have become more significant and widely used over the years. 

In my statement today, I will focus on three topics. First, I will provide a 

quick overview of the purpose and provisions of CRA. Second, I will 

discuss GAO’s role in fulfilling its responsibilities under the Act and 

summarize our CRA activities over the years. Finally, I will address CRA 

within the broader context of developments in presidential and 

congressional oversight of federal agencies’ rulemaking. My statement is 

based on our activities and observations implementing our responsibilities 

under CRA over the past decade and our related body of work reviewing 

federal regulatory issues. 

 1

5 U.S.C. §§ 801-808. CRA was enacted as Subtitle E of the Small Business Regulatory 

Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, on March 29, 1996. 

Page 1 GAO-06-601T 
Congressional oversight of rulemaking using the CRA can be an important 

and useful tool for monitoring the regulatory process and balancing and 

accommodating the concerns of American citizens and businesses with 

the effects of federal agencies’ rules. As we noted early in the 

implementation of CRA, it is important to assure that executive branch 

agencies are responsive to citizens and businesses about the reach, cost, 

and impact of regulations, without compromising the statutory mission 

given to those agencies.2

 CRA seeks to accomplish this by giving Congress 

an opportunity to review most rules before they take effect and to 

disapprove those found to be too burdensome, excessive, inappropriate, 

duplicative, or otherwise objectionable. 

Overview of CRA 

Purpose, Procedures, 

and Requirements 

With certain exceptions, CRA applies to most rules issued by federal 

agencies, including the independent regulatory agencies.3

 Under CRA, two 

types of rules, major and nonmajor, must be submitted to both Houses of 

Congress and GAO before they can take effect. CRA defines a “major” rule

as one which results 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. CRA specifies that the determination of what rules are 

major is to be made by the Office of Information and Regulatory Affairs 

(OIRA) of the Office of Management and Budget (OMB). Major rules 

cannot be effective until 60 days after publication in the Federal Register 

or submission to Congress and GAO, whichever is later. Nonmajor rules 

become effective when specified by the agency, but not before they are 

filed with Congress and GAO. 

CRA established a procedure by which members of Congress may 

disapprove agencies’ rules by introducing a resolution of disapproval that,

if adopted by both Houses of Congress and signed by the President, can 

nullify an agency’s rule. If such a resolution becomes law, the rule then 

 2

GAO, Congressional Review Act, GAO/T-OGC-97-29 (Washington, D.C.: Mar. 6, 1997). 

3

In addition to some general exceptions, such as one regarding any rule relating to agency

management or personnel, CRA does not apply to any rule promulgated under the

Telecommunications Act of 1996 and the amendments made by that Act. Nor does CRA 

apply to rules that concern monetary policy proposed or implemented by the Board of 

Governors of the Federal Reserve System or the Federal Open Market Committee. 

Page 2 GAO-06-601T 
cannot take effect or continue in effect. In addition, CRA prohibits an 

agency from reissuing such a rule in substantially the same form, or a new 

rule that is substantially the same as the disapproved rule, unless the 

reissued or new rule is specifically authorized by a law enacted after the

date of the joint resolution disapproving the original rule. Members of 

Congress seldom have attempted to use this disapproval process. Over the 

past decade, 37 joint resolutions of disapproval have been introduced 

regarding 28 rules. Only once has Congress used this disapproval process

to nullify a rule, when it disapproved the Department of Labor’s rule on 

ergonomics in 2001.4

GAO’s only stated role under CRA is to provide Congress with a report on 

each major rule concerning GAO’s assessment of the promulgating federal

agency’s “compliance with the procedural steps” required by various acts 

and executive orders governing the regulatory process. These include 

preparation of a cost-benefit analysis, when required, and compliance with 

the Regulatory Flexibility Act, the Unfunded Mandates Reform Act of 1995 

(UMRA), the Administrative Procedure Act (APA), the Paperwork 

Reduction Act, and Executive Order 12866. GAO’s report must be sent to 

the congressional committees of jurisdiction within 15 calendar days of 

the publication of the rule or submission of the rule by the agency, 

whichever is later. While the CRA is silent with regard to GAO’s role 

concerning nonmajor rules, we found that basic information about those 

rules also should be collected in a manner that can be of use to Congress 

and the public. 

GAO’s Role and 

Activities under CRA 

To compile information on all the rules submitted to us under CRA, we 

established a database, available to the public on the Internet.5

 Our 

database gathers basic information about the 15–20 major and nonmajor 

rules that we receive each day, including the title, the agency, the 

Regulation Identification Number, the type of rule, the proposed effective

date, the date published in the Federal Register, the congressional review 

trigger date, and any joint resolutions of disapproval that may have been 

introduced. We created a standardized submission form available on the 

Internet, which is used by almost all the agencies, to allow more consistent 

 4

Pub. L. No. 107-5, 115 Stat. 7 (Mar. 20, 2001). 

5

GAO’s Federal Rules Database is publicly available at www.gao.gov under the “Legal 

Products” link. The reports we prepare on major rules under CRA are also available on that

site. 

Page 3 GAO-06-601T 
information collection. Since CRA was enacted on March 29, 1996, we 

have received and submitted timely reports on 610 major rules and entered 

41,218 nonmajor rules into the database.6

As noted earlier, before a rule can become effective, it must be filed in 

accordance with CRA. We conduct an annual review to determine whether 

all final rules covered by the Act and published in the Federal Register 

have been filed with the Congress and us. We perform the review to both 

verify the accuracy of our database and to ascertain the degree of agency

compliance with CRA. We forward a list of unfiled rules to OIRA for their 

handling, and, in the past, they have disseminated the list to the agencies,

most of which file the rules or offer an explanation of why they do not 

believe a rule is covered by CRA. 

Although we reported that agencies’ compliance with CRA requirements 

was inconsistent during the first years after CRA’s enactment, compliance 

improved over time. In general, we have found the degree of compliance 

to have remained fairly constant, with roughly 200 nonmajor rules per year 

not filed with our office. In the 10 years since CRA was enacted, all major

rules have been filed in a timely fashion. 

In the past 10 years, we also have issued eight opinions regarding what 

constitutes a “rule” under CRA in response to requests from congressional 

committees and members concerning various agency pronouncements and 

memorandums. CRA contains a broad definition of the term “rule,” 

including more than the usual notice and comment rulemakings published 

in the Federal Register under APA. Under CRA, “rule” means the whole or 

part of an agency statement of general applicability and future effect

designed to implement, interpret, or prescribe law or policy. For example, 

in 1996 we concluded that a memorandum issued by the Secretary of 

Agriculture in connection with the Emergency Salvage Timber Sale 

Program constituted a rule under CRA and should have been submitted to 

Congress and GAO before it could become effective.7

 Similarly, in 2001, we

concluded that a Fish and Wildlife Service Record of Decision entitled 

“Trinity River Mainstem Fishery Restoration” was a rule covered by CRA.8

We believe these opinions have strengthened the reach of CRA by insuring 

 6

Number of major and nonmajor rules are as of March 24, 2006. 

7

See B-274505, Sept. 16, 1996. 

8

See B-287557, May 14, 2001.

Page 4 GAO-06-601T 
compliance with the main thrust of the Act, which was to insure that 

agency actions, whether labeled a “rule” by the agency or not, are subject 

to congressional review. We have noted that certain congressional 

committees, such as the Joint Committee on Taxation, were taking an

active role in overseeing agency compliance with CRA. As a result, for 

example, Internal Revenue Service procedures, rulings, regulations, 

notices, and announcements are forwarded as CRA submittals. 

The one major area of noncompliance with the requirements of the Act 

has been that agencies have not always delayed the effective date of major 

rules for 60 days as required by the Act.9

 Agencies have filed 610 major 

rules with our office, and, for 71 of those rules, the agencies did not delay 

the effective date for the required 60 days. 

One reason for noncompliance with the 60-day delay is that the agencies 

have misapplied the “good cause” exception which waives the delay of the

rule if it would be impracticable, unnecessary, or contrary to the public 

interest.10 Since the enactment of CRA, our office has consistently held

that the “good cause” exception is only available if a notice of proposed 

rulemaking was not published and public comments were not received.11

Many agencies, following a notice of proposed rulemaking and receipt of 

comments, have stated in the preamble to the final major rule that “good 

cause” existed for not providing the 60-day delay. 

The other reason for noncompliance is that the statute that an agency is 

implementing by issuing the final major rule contains a date by which the 

Secretary or Administrator must issue the regulation, and the date, in 

many instances, does not permit the 60-day delay. However, the CRA 

states that it shall apply notwithstanding any other provision of law.12

 9

5 U.S.C. § 801(a)(3)(A). 

105 U.S.C. § 808(2). 

11See B-275549; B-275552, Dec. 9, 1996. 

125 U.S.C. § 806(a). 

Page 5 GAO-06-601T 
Agencies and GAO have provided Congress a considerable amount of 

information about forthcoming rules in response to CRA. The limited 

number of CRA joint resolutions introduced might suggest that this 

information generates little additional oversight of rulemaking. However, 

as we found in our review of the information generated on federal 

mandates under UMRA, the benefits of compiling and making information 

available on potential federal actions should not be underestimated.13

Further, as we also found regarding UMRA, the availability of procedures 

for congressional disapproval may have some deterrent effect. The 

Congressional Research Service has reported that several rules have been

affected by the presence of the review mechanism, suggesting that the

CRA review scheme has had some influence. 

Trends in Presidential 

and Congressional 

Review of 

Rulemaking 

Still, as I noted in my testimony before this Subcommittee last November, 

efforts to enhance presidential oversight of agencies’ rulemaking appear to 

have been more significant and widely employed in recent years than 

similar efforts to enhance congressional oversight.14 In particular, our 

reviews have noted the growing influence and authority of OIRA in the 

oversight of the regulatory process.15 Some of this increased activity 

reflects administration initiatives, but it also includes some new 

responsibilities assigned by Congress through statute, such as the 

requirement for OMB to issue governmentwide guidance to implement the 

Information Quality Act.16

In contrast, there does not appear to have been a similar expansion of 

direct congressional influence and authority over the regulatory process, 

although bills have been introduced over the years to enhance the 

mechanisms available for congressional oversight of agencies’ rulemaking. 

Some recent legislative proposals have focused on expanding the 

information and analysis available to Congress on pending rules, while 

 13See GAO, Unfunded Mandates: Analysis of Reform Act Coverage, GAO-04-637 

(Washington, D.C.: May 12, 2004) and Unfunded Mandates: Views Vary About Reform 

Act’s Strengths, Weaknesses, and Options for Improvement, GAO-05-454 (Washington, 

D.C.: Mar. 31, 2005). 

14See GAO, Federal Rulemaking: Past Reviews and Emerging Trends Suggest Issues That

Merit Congressional Attention, GAO-06-228T (Washington, D.C.: Nov. 1, 2005). 

15See GAO, Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the 

Transparency of Those Reviews, GAO-03-929 (Washington, D.C.: Sept. 22, 2003). 

16The Information Quality Act is also known as the Data Quality Act. Consolidated 

Appropriations Act, 2001, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-153-54 (Dec. 21, 2000).

Page 6 GAO-06-601T 
others focus on enhancing the mechanisms that Congress could employ 

for its own review—and potential disapproval—of agencies’ rules. 

As the major example of the first category of proposals, Congress passed 

the Truth in Regulating Act (TIRA) in 2000 to provide a mechanism for it 

to obtain more information about certain rules.17 In contrast to the 

essentially procedural reviews that GAO now conducts under CRA, TIRA 

contemplated a 3-year pilot project during which GAO would perform 

independent evaluations of “economically significant” agency rules when 

requested by a chairman or ranking member of a committee of jurisdiction 

of either House of Congress. However, during the 3-year period

contemplated for the pilot project, Congress did not enact any specific 

appropriation to cover TIRA evaluations, as called for in the Act, and the

authority for the 3-year pilot project expired on January 15, 2004. 

Therefore, we have no information on the potential effectiveness of this 

mechanism. 

Congress has considered reauthorizing TIRA, and we have strongly urged

that any reauthorization of TIRA continue to contain language requiring a 

specific annual appropriation for GAO before we are required to 

undertake independent evaluations of major rulemakings. Such an 

expansion of GAO’s current lines of business without additional dedicated 

resources would pose a serious problem for us, especially in light of what 

will likely be increasing budgetary constraints in the years ahead. It would 

also likely serve to adversely affect our ability to provide the same level of 

service to the Congress in connection with our existing statutory 

authorities. We have also recommended that TIRA evaluations be 

conducted under a pilot project basis. 

Members of Congress have also introduced several bills over the past year 

that would provide additional mechanisms for direct review and approval 

(or disapproval) of agencies’ rules.18 Some of these proposals would 

modify how Congress reviews information submitted under CRA and how 

the disapproval procedures would work. These bills could, for example, 

create a joint committee that would be tasked with reviewing all rules to 

determine whether a disapproval resolution under CRA should be 

introduced. We have conducted no work that would provide information 

on the potential effectiveness of such changes. 

 17Pub. L. No. 106-312, 114 Stat. 1248 (Oct. 17, 2000), 5 U.S.C. § 801 note.

18See, for example, H.R. 576, H.R. 931, and H.R. 3148. 

Page 7 GAO-06-601T 
Mr. Chairman, this concludes my prepared statement. Once again, I

appreciate the opportunity to testify on these important issues. I would be 

pleased to address any questions you or other Members of the 

Subcommittee might have at this time. 

If additional information is needed regarding this testimony, please 

contact J. Christopher Mihm, Managing Director, Strategic Issues, at (202) 

512-6806 or mihmj@gao.gov. 

Page 8 GAO-06-601T (450485) 
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