Daily Report for Executives provides in-depth coverage of unfolding legislative, regulatory, and judicial news from the nation’s capital, the states, and around the world. This daily news service...
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 email@example.com
To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)