A recent Congressional Research Service (CRS) report detailed the number of agency rules which were not passed on to the Government Accounting Office (GAO). Hat tip, Constitutional Law Prof Blog. The report concludes that over 1,000 rules over the past 10 years had not been submitted to the GAO. The reason for this requirement, according to the CRS report is as follows:
Agency regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. Therefore, Congress has a vested interest in overseeing the regulations that agencies issue pursuant to those statutes. Because congressional authority over agency rulemaking was believed to have waned in recent decades (while presidential authority over rulemaking had increased), the CRA was enacted in an attempt to reclaim a measure of congressional control.107 Although Congress can learn about the issuance of agency rules in many ways, the requirement in Section 801(a)(1)(A) of the CRA that agencies submit all of their final rules to GAO and Congress before they can take effect helps to ensure that Congress will have an opportunity to review, and possibly disapprove of, agency rules.
Curious, we decided to try to find out if the recent advisory letter turned rule regarding gaming on newly acquired trust lands (with the 25 mile radius or near a “significant number of tribal members” requirement) was one that hasn’t been submitted to the GAO pursuant to the Congressional Review Act. It appears it is. 25 CFR 292, “Gaming on Trust Lands Acquired After October 17, 1988” does not come up in a search of the GAO’s database Federal Rules Database.