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By Cheryl Bolen
Senators are looking to test the retroactive use of the Congressional Review Act to repeal significant agency guidance documents, but a panelist at an American Bar Association conference said there are much easier ways to revoke guidance than a resolution of disapproval.
Sen. Patrick Toomey (R-Pa.), for example, sent a formal request to the Government Accountability Office in March, asking it to evaluate whether or not a four-year-old guidance document on leveraged lending is a “rule” under the CRA that should have been submitted to Congress.
An important development in administrative law is that “hundreds” of existing significant guidance documents not submitted to Congress have been unlawfully enforced, said Todd Gaziano, executive director of the Pacific Legal Foundation.
Gaziano spoke on a panel May 19 at the ABA’s Administrative Law and Regulatory Practice Institute, arguing that any reliance on unlawful guidance documents in an enforcement action “is a game-changer.”
Republican lawmakers are looking at whether old rules, guidance documents, or even policy manuals not properly submitted to Congress and the Government Accountability Office can now be “disapproved” by Congress under the fast-track procedures of the CRA.
Specifically, Toomey asked the GAO to rule by June 1 on a joint guidance document issued March 22, 2013, by the Comptroller of the Currency, the Federal Reserve, and the Federal Deposit Insurance Corporation on leveraged lending.
The guidance appears to be generally applicable and prescribes detailed policy, and so could constitute a “rule” for purposes of the CRA, Toomey said. The CRA defines a rule as “the whole or part of an agency statement of general or particular applicability and future effect.”
But another panelist, Curtis Copeland, a legislative specialist retired from the Congressional Research Service and the GAO, said there are easier ways to repeal a guidance document than through the “cumbersome” CRA process.
If a lawmaker wants to check a guidance document to see if it should have been submitted to Congress, there is a time-tested way of finding out, which is to submit it to GAO and ask its opinion, Copeland said.
That’s happened at least 11 times since the CRA was passed in 1996, and the GAO more often than not has said it is a “rule,” Copeland said. And what the parliamentarian has said is, the date of the GAO letter is the date of submission to Congress under the CRA, he said.
“But, if it’s a guidance document and you want to get rid of it, why go through the CRA process? Just get rid of it,” Copeland said.
An agency does not have to go through notice-and-comment rulemaking just to get rid of a guidance document, Copeland said. If there’s a guidance document that Congress and the administration do not like, the agency can just issue new guidance, he said.
“And if you issue new guidance and revoke the old guidance, then there’s nothing to undo with the CRA. It makes no sense,” he said.
A spokesman for the GAO said it has received five requests from lawmakers so far about using the CRA retroactively, but there is no decision yet and no timetable for doing so.
One possible reason for using the CRA process retroactively is the act’s prohibition against agencies issuing a substantially similar rule or guidance in its place.
But the CRS has recently opined that the only arbiter of whether something is or isn’t substantially the same is Congress, because there is no judicial review available under the CRA, Copeland said.
So, if Congress were to disapprove a guidance document, and the agency reissued guidance that Congress believed was substantially the same as what was issued before, Congress can disapprove it again, Copeland said. This would leave agencies with little incentive to reissue similar guidance.
Congress also can pressure agencies through riders on appropriations bills or any other measure to get them to overturn guidance, Copeland said.
To contact the reporter on this story: Cheryl Bolen in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com
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