The Office of Management and Budget issued a memorandum last week requiring independent agencies such as the SEC to coordinate proposed new rules and guidance with the White House prior to releasing them to the public.
The memorandum is aimed at reinforcing the agencies’ obligations under the Congressional Review Act of 1996, which requires them to submit to the Office of Information and Regulatory Affairs any regulatory action deemed economically significant, defined as one that has “an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities,” the OMB says. In such cases, Congress can then disapprove a rule, and, if approved by the president or enacted over a presidential veto, invalidate the rule, according to the memorandum. In such cases, the agency would be barred from submitting rules that take “substantially the same form” unless specifically authorized by a law enacted after the date of the disapproval, the OMB says.
The memorandum also states that the CRA covers “all Federal agencies, including the historically independent agencies.” This includes the SEC, the Federal Reserve, the Consumer Financial Protection Bureau and many others, according to USA.gov.
The CRA only exempts rules on monetary policy from the Federal Reserve or the Federal Open Market Committee as well as rules promulgated under the Telecommunications Act of 1996 and its amendments, the OMB says.
Furthermore, the CRA applies not just to “notice-and-comment” rules but to other regulatory actions, including guidance documents, general statements of policy and interpretive rules, exempting rules related to agency staff or those that don’t “substantially affect the rights or obligations of non-agency parties,” according to the memorandum.