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Financial Services Law Insights and Observations

OMB requires review of all regulatory materials, including guidance

Agency Rule-Making & Guidance Federal Issues OIRA OMB Congressional Review Act

Agency Rule-Making & Guidance

On April 11, acting Director of the Office of Management and Budget (OMB), Russel Vought, sent a memorandum to the heads of all executive agencies announcing that on May 11, agencies will be required to submit all regulatory guidance materials to the Office of Information and Regulatory Affairs (OIRA) for review prior to publication. The memo asserts that the Congressional Review Act (CRA) “applies to more than just notice-and-comment rules; it also encompasses a wide range of other regulatory actions, including, inter alia, guidance documents, general statements of policy and interpretive rules” and therefore, agencies should not publish a regulatory action in the Federal Register without first submitting the document to OIRA to determine whether it is considered a “major rule” under the CRA. The CRA defines a “major rule” as one having (i) an annual effect on the economy of at least $100 million; (ii) a major increase in costs or prices for consumers, individual industries, or federal and state governments; or (iii) significant adverse effects on competition, employment, and U.S.-based enterprises. Should OIRA consider the regulatory action to be a “major rule,” the rule will be submitted to Congress with OIRA’s report and will not become effective sooner than 60 days after its submission. The memo instructs agencies to provide OIRA a quantitative analysis, which includes costs, benefits, and transfer impacts relative to a baseline, “when reasonably possible.” Additionally, the agency’s analysis should include whether the regulatory action would impose a disproportionate cost on a particular group or place a significant burden on the economy.

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