On April 11, 2019, Acting Director of the Office of Management and Budget (the “OMB”) Russell T. Vought sent a memorandum to executive department and federal regulatory agency heads regarding compliance with the Congressional Review Act (the “CRA”). The memorandum clarifies that the CRA applies to “a wide range of other regulatory actions” beyond notice-and-comment rulemaking, including “guidance documents, general statements of policy, and interpretive rules.” The memorandum also formalizes a process for how the Office of Information and Regulatory Affairs (“OIRA”) will classify regulatory actions for CRA purposes. The memorandum could significantly tighten Congress’ control over regulatory agencies.
Enacted in 1996, the CRA provides a mechanism by which Congress can invalidate an agency “rule” by passing a joint resolution disapproving the rule within 60 days after the rule is submitted to Congress. The CRA specifically exempts rules concerning monetary policy developed by the Federal Reserve Board or the Federal Open Market Committee, but the April 11 memorandum states that the CRA applies to rules issued by historically independent agencies. Although most rules are allowed to take effect during the review period, rules designated by OIRA as having a “major” economic impact cannot take effect during the Congressional review period, and are subject to additional reporting requirements. In addition to clarifying the expansive definition of “rule,” the April 11 memorandum sets forth new procedures that agencies must follow to facilitate OIRA’s determination of whether a rule is “major.”
The April 11 memorandum follows last year’s action by Congress of using the CRA to repeal auto-lending guidance issued by the Consumer Financial Protection Bureau (the “CFPB”) in 2013, after OIRA deemed the guidance a “rule” under the CRA. Last year’s action was the first time the CRA had been used to overturn agency guidance.