OMB Expands FERC Actions Subject to Prepublication Review
From: Power & Pipes (Morgan, Lewis)
A recent policy statement from the Office of Management and Budget (OMB) instructs departments and agencies—including independent agencies like FERC—to submit “guidance documents, general statements of policy, and interpretive rules” to the OMB’s Office of Information and Regulatory Affairs (OIRA) for prepublication review. It also establishes guidelines for the OIRA to apply to properly classify regulatory actions and determine whether they are “major” rules for purposes of the Congressional Review Act (CRA). This major determination process will take full effect on May 11, 2019.
The broad applicability of the OMB’s action may increase the volume of rules and other agency issuances that require OIRA review and potentially result in regulatory gridlock and rulemaking delays. As an agency that is subject to the OMB memorandum, FERC will need to submit proposed rules, guidance documents, policy statements, and other interpretive rules that fall within the special category of “major rules” to Congress to ensure compliance with the CRA requirements. This may introduce additional delays in FERC rulemaking proceedings and in the issuance of policy statements and other guidance documents. It could also potentially result in FERC paring back certain regulatory requirements to comply with the directives.
