Obama administration skirts congressional review

The Obama administration is skirting congressional review of some major federal regulations by failing to designate the rules as economically significant, according to a study being released Tuesday by a Washington advocacy group.

The American Action Forum, a center-right nonprofit group, said it found at least eight administration regulations that have an annual economic impact of $100 million or more, but which were not designated as “major” rules by the White House Office of Information and Regulatory Affairs (OIRA) and therefore don’t fall under the Congressional Review Act.

The regulations include the individual and employer mandates of the Affordable Care Act.

“In total, these eight regulations have imposed more than $1.4 billion in costs and 8.7 million paperwork burden hours, but Congress has little oversight power if the administration ignores important aspects of the CRA,” the group said in its report, adding that the omissions “raise troubling issues of regulatory transparency and accountability.”

A spokesman for the White House Office of Management and Budget disputed the study’s accuracy.

“We have not had the opportunity to review this report in any detail, but even the most cursory read shows that it is deeply flawed,” spokesman Frank Benenati said. “For example, some of the rules it cites were clearly identified as ’major’ rules on reginfo.gov.”

The administration often has been a target of complaints by business groups and Republican lawmakers for imposing too many new regulations. A report by the Congressional Research Service last year found that there was a sharp increase in regulations during the first three years of Mr. Obama’s first term, followed by a drop in 2012.

Under federal rulemaking, OIRA decides whether a new regulation will result in annual costs to the economy of $100 million or more. The Government Accountability Office then has the responsibility of determining whether federal agencies are complying with that process.

Sam Batkins, director of regulatory policy at AAF, said the White House was trying to obscure the group’s findings.

“The administration is referencing Reginfo and the Unified Agenda, which have nothing to do with compliance with the Congressional Review Act,” Mr. Batkins said. “According to GAO data, there are several rules that OIRA labeled as ’non-major,’ which should have been designated as ’major.’”

“Despite significant burdens that should have triggered major rule status, none of these rulemakings were listed as major, which would prompt a formal report to Congress,” the study said.

The rules cited as “major” in the study include a 2012 regulation to incorporate so-called commodities “swaps” on the futures market, $703 million in costs; the final rules on the Mental Health Parity Act, $200 million; and a rule on integrated mortgage disclosures, $275 million.

To conduct this study, AAF examined all recent rules with annual costs or benefits greater than $100 million annually. The group said it then cross-referenced those rulemakings with the GAO’s major rule database.

The group said the final rule to implement the Mental Health Parity Act “admitted” that it would cost roughly $200 million per year, but GAO listed it as a “non-major” rule.

The study also said that the recently finalized employer mandate of the Affordable Care Act “contains no regulatory analysis at all, much less a mention of the CRA.”

“Of course, even the administration recognizes that the employer mandate will impose significant costs, which is one reason why it delayed the regulation twice,” the study said. “However, the text of the rule declined to admit that new mandates would impose paperwork.”

The group said there are “profound implications” for Congress, which uses the CRA as an oversight tool.

“The fault for these eight missing regulatory actions does not rest entirely on independent agencies or GAO; the OIRA Administrator has the responsibility to determine major rule status,” the study said. “It seems likely that these missing rules are the responsibility of the administration, although agencies themselves have omitted analyses under the CRA.”