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®: CRE Regulatory Action of the Week

OMB Seeks to Clarify Implementation of FAIR Act

   The challenge and appeal process of the FAIR Act occurs after an agency submits its "list" (inventory) of activities that are commercial in nature to Congress and makes the inventory available to the public. It is at this time that an "interested party" may submit a challenge to the agency (and, if that is denied, an appeal) "of an omission of a particular activity from, or an inclusion of a particular activity on," the agency's inventory.

   What the General Accounting Office's report discovered, specifically, was that a significant number of "interested parties" submitted challenges and appeals on matters for which Congress had not authorized challenges and appeals, and thus were dismissed by the agencies. The GAO report distinguished between "employee challenges" and "industry challenges." The vast majority of the employee challenges and appeals were within the provisions of the act, but most of the industry challenges were not. According to the report, "Many of the issues that industry raised in their challenges and appeals went beyond the provisions of the FAIR Act, because they concerned issues other than the inclusion or omission of an activity from an agency's inventory."

   The report outlined many of the specific issues that industry raised that "did not meet the challenge provisions of the FAIR Act": (1) the agency's use of OMB's reason codes for categorizing commercial activities; (2) the format of the agency's inventory; (3) the agency's use of OMB's function codes; and (4) a general dissatisfaction with OMB guidance or the act, or agency compliance with either.

   In an effort to stem any further confusion about what matters are, and are not, subject to challenge and appeal, OMB has proposed to revise its implementation guidance for the FAIR Act. The proposed revision is provided in full in the Federal Register notice and can be viewed by clicking below. Agency and public comments on the proposed revision are due to OMB by January 16, 2001.
  • Click to view full notice in Federal Register including proposed OMB revision
  • Click to submit comment