On Feb. 16, Rep. Sue Kelly (R-NY) introduced the "Congressional Accountability for Regulatory Information Act" (H.R. 3669), which seeks to establish an office within GAO to review agency rulemakings at the request of Congress. On Feb. 16, Rep. Sue Kelly (R-NY) introduced the "Congressional Accountability for Regulatory Information Act" (H.R. 3669), which seeks to establish an office within GAO to review agency rulemakings at the request of Congress. A variation of this legislation, H.R. 3521, was previously introduced by Rep. David McIntosh (R-IN). Both bills have been referred to both the Judiciary Committee and the Committee on Government Reform. A Senate version (S. 1198) has already been reported out of the Governmental Affairs Committee, and is awaiting floor action. Bill Summary H.R. 3669 would establish an office within the General Accounting Office to analyze the costs and benefits of any "economically significant" proposed or interim rule. GAO would have discretion in determining how to prioritize rules for review, and is not required to honor each request. For each rule selected for review, GAO would have to undertake an "independent audit and assessment," which is defined as "a review of the agency's underlying assessments and assumptions used in developing rule." This "audit and assessment" must also include: (1) "an analysis of the agency's and the public's assessment of the potential" costs and benefits of the rule; (2) "an analysis of the agency's and the public's alternative approaches that could achieve the objectives of the agency in a more cost effective manner"; (3) "an analysis and assessment of any impact statement or report prepared by the agency ... as part of the rulemaking"; and (4) "a list of all analyses, groups, entities, and sources consulted" by GAO in developing its report. The bill instructs agencies to provide "any available or existing records, information, or data upon which the agency relied in developing" its rule. In addition, the agency may provide records that GAO has not requested, but that the agency believes relevant. For proposed rules, GAO would have 30 days after the close of the comment period to submit its report. However, if a final rule is to be issued less than 120 days from the date of publication of the proposed or interim rule, then GAO's report must be completed within 10 days after the close of the comment period. For final rules, GAO would have to complete its report within 30 days after publication in the Federal Register. In addition to the "independent audit and assessment" described above, this would include a summary of the differences between the proposed and final rule. The office would be authorized funding of $5.2 million for fiscal year 2001. This "pilot project" would continue for a five-year period if the office receives "a specific annual appropriation of not less than $5.2 million or the pro-rated equivalent..." Bill Analysis In addition to analyzing the agency's findings, GAO would be required to analyze "the public's" assessment of costs and benefits, as well as "the public's alternative approaches that could achieve the objectives of the agency in a more cost effective manner." There are a number of problems with this:

1. It would, in effect, put GAO in the position of conducting its own cost-benefit analysis. The bill does not explicitly direct GAO to conduct its own cost-benefit analysis, as Rep. Kelly's version from the 105th Congress did. But it would put GAO in the position of weighing outside analysis (including self-serving analysis generated by affected industry) — in search of a "more cost effective" approach — that the agency has already reviewed and rejected. In effect, GAO would be conducting its own cost- benefit analysis. The Senate version, by contrast, requires only an "evaluation of the agency's analysis" to examine "underlying assessments and assumptions." GAO is capable of doing this, but does not have the time or the expertise to do its own cost- benefit analysis. 2. It would place GAO in the position of describing "more cost effective" regulatory alternatives. As stated above, Rep. Kelly's bill requires GAO to conduct an analysis of "the public's alternative approaches that could achieve the objectives of the agency in a more cost effective manner." Currently, agencies are not required to develop rules on the basis of a cost-effectiveness test, and in many cases, they are statutorily prohibited from doing so because of the seriousness of the health, safety, or environmental risks involved. GAO should not be charged with evaluating rules on the basis of a standard that Congress has found, in many cases, to be inappropriate. 3. It would be extremely time-consuming. What constitutes "the public" is left undefined. Presumably, it would at least include those who submit comments to the agency. But considering that controversial rules often generate hundreds of comment letters from a wide variety of perspectives, this would be an extremely time-consuming task — and given the limited time GAO is given to generate its report, likely impossible. 4. It does not grant agencies the opportunity to comment on GAO's conclusions. Under the bill, GAO could call into question an agency's decision-making, and possibly recommend alternative approaches. Yet the bill does not grant the agency an opportunity to respond. The bill should include a provision granting agencies time to respond to GAO's analysis, and this response should be included in GAO's final report delivered to Congress. This would allow members a more complete picture of any issues that might be in dispute.