FEDERAL REGULATIONS

Opportunities to Improve 

the Effectiveness and 

Transparency of 

Regulatory and Guidance 

Practices

Statement of Kris Nguyen, Acting Director

Strategic Issues

Testimony 

Before the Committee on Oversight and 

Government Reform, House of 

Representatives

For Release on Delivery 

Expected at 10:00 a.m. ET

Wednesday, March 14, 2018

GAO-18-436T

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-18-436T, a testimony 

before the Committee on Oversight and 

Government Reform, House of 

Representatives

March 2018

FEDERAL REGULATIONS

Opportunities to Improve the Effectiveness and 

Transparency of Regulatory and Guidance Practices

What GAO Found

Agencies GAO reviewed—Departments of Agriculture (USDA), Education 

(Education), Health and Human Services (HHS), and Labor (DOL) did not 

consistently adhere to Office of Management and Budget (OMB) requirements 

and internal controls when developing regulatory guidance, as GAO reported in 

2015. Unlike regulations, regulatory guidance is not generally legally binding and 

is subject to different requirements for regulatory oversight. Agencies weighed 

various factors when they determined whether to issue guidance. The agencies 

GAO reviewed issued different amounts of guidance for various purposes, such 

as explaining plans for implementing regulations. Agencies found few of their 

guidance documents to be “significant,” guidance with a broad and substantial 

impact on regulated entities. USDA and Education had written procedures for the 

approval of significant guidance as directed by OMB; DOL’s procedures needed 

updating and to be distributed to appropriate agency officials; HHS did not have 

any. GAO found that USDA, Education, and DOL consistently applied OMB’s 

requirements for public feedback and access, for example public access to 

guidance through websites, while HHS did not. Agencies can better ensure 

consistent application of review processes and public access to significant 

guidance through better adherence to OMB requirements. GAO also found 

opportunities for agencies to improve adherence to internal controls for guidance 

that did not meet OMB’s definition of “significant.” For example, most 

subagencies GAO reviewed did not have written procedures for the production of 

guidance and about half did not regularly evaluate whether issued guidance was 

effective and up-to-date. Adherence to these internal controls could promote 

quality and consistency in guidance development processes. 

GAO found that agencies did not consistently comply with the Congressional 

Review Act (CRA) for regulations promulgated during the 120-day presidential 

transition periods (September 23 through January 20), as defined by the 

Presidential Transitions Improvements Act of 2015. GAO reported that during the 

transition from the end of one presidential administration to the next, the Clinton, 

Bush, and Obama administrations published on average roughly 2.5 times more 

economically significant regulations during transition periods than during 

nontransition periods; increases are typical during transition periods. For these 

regulations, agencies more frequently provided advanced notice to the public, 

thus providing the public opportunities to influence the development of these 

transition period regulations before they were finalized. In their published 

regulations, agencies generally reported complying with four of five procedural 

requirements for promulgating regulations during both transition and 

nontransition periods. Agencies are required to 1) assess the impact of 

regulations on small entities, 2) minimize the burden that information collections 

impose on the public, 3) assess the costs and benefits of regulations that include 

federal mandates, and 4) for certain agencies, obtain direct input from small 

entities during rulemaking. Also, a fifth requirement, agencies must comply with 

CRA, which provides Congress an opportunity to review and possibly disapprove 

regulations before they take effect. Agencies less often complied with CRA, 

during both transition and nontransition periods. The most common deficiency 

was agencies’ failure to provide Congress the required time to review 

regulations, which GAO has also identified as a deficiency in previous work.

View GAO-18-436T. For more information, 

contact Kris Nguyen at (202) 512-2660 or

nguyentt@gao.gov.

Why GAO Did This Study

Congress has often asked GAO to 

evaluate the implementation of 

procedural and analytical requirements 

that apply to agencies’ rulemaking and 

guidance processes. The importance 

of improving the transparency of those 

processes, including providing public 

participation and sufficient oversight, is 

a common theme throughout GAO’s 

body of work on federal regulation.

Based on GAO’s prior work, this 

testimony addresses: (1) the extent to 

which USDA, Education, HHS, and 

DOL adhered to OMB requirements 

and internal controls when developing 

regulatory guidance, and (2) agencies' 

compliance with the CRA for 

regulations promulgated during 

presidential transitions.

What GAO Recommends

In the April 2015 report on regulatory 

guidance, GAO made eleven 

recommendations to USDA, Education, 

HHS, and DOL to ensure adherence to 

OMB requirements and applicable 

elements of internal controls. Three of 

these recommendations to HHS 

remain open: 1) to develop written 

procedures for the approval of 

significant guidance, 2) strengthen 

application of internal controls over 

guidance processes, and 3) improve its 

website. 

In the March 2018 report on 

rulemaking at the end of presidents’ 

terms, GAO recommended OMB, as 

part of its regulatory review process, 

identify economically significant 

regulations at risk of not complying 

with the CRA and work with agencies 

to ensure compliance. OMB staff did 

not agree or disagree with the 

recommendation.
Letter

Page 1 GAO-18-436T 

Chairman Gowdy, Ranking Member Cummings, and Members of the 

Committee:

I am pleased to be here today to discuss federal regulatory and guidance 

practices, focusing, at your request, on our 2015 report on guidance 

processes at select agencies, and our recently released report on 

rulemaking at the end of presidents’ terms.1

Agencies use federal regulations and guidance to achieve national goals, 

such as improving the economy and protecting the health and safety of 

the public. Congress has often asked us to evaluate the implementation 

of procedural and analytical requirements that apply to agencies’

rulemaking and guidance processes. The importance of improving the 

transparency of those processes is a common theme throughout our body 

of work on federal regulation. Based on our work, this testimony 

discusses: (1) the extent to which the Departments of Agriculture (USDA), 

Education (Education), Health and Human Services (HHS), and Labor 

(DOL) adhered to Office of Management and Budget (OMB) requirements 

and internal controls when developing regulatory guidance and (2) 

agencies’ compliance with the Congressional Review Act (CRA) for 

regulations promulgated during presidential transitions.2 We consistently 

found opportunities to improve the transparency and effectiveness of 

regulatory and guidance practices.

My statement is based on work that we have issued on regulatory and 

guidance processes prepared at the request of Congress. We made 12

recommendations to agencies on the topics that I plan to address today, 

eight of which have been implemented to date.3 We conducted our work 

for these reports in accordance with generally accepted government 

 1

GAO, Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional 

Review Act Compliance during and at the End of Presidents’ Terms, GAO-18-183 

(Washington, D.C.: Mar. 13, 2018) and Regulatory Guidance Processes: Selected 

Departments Could Strengthen Internal Control and Dissemination Practices, 

GAO-15-368 (Washington, D.C.: Apr. 16, 2015).

2

We conducted this work in response to a requirement in Section 5 of the Edward “Ted”

Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015, which 

includes a provision for us to assess final significant regulatory actions promulgated by 

executive departments during specified presidential transition periods. Pub. L. No. 114-

136, § 5 130 Stat. 301, 307–308 (2016).

3

The 12 recommendations are from two reports: GAO-15-368 and GAO-18-183. Because 

GAO-18-183 issued on March 13, 2018 we would not expect OMB to have implemented 

the included recommendation at the time of this hearing. 

Letter
Page 2 GAO-18-436T 

auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable 

basis for our findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives. A more detailed 

discussion of prior reports’ objectives, scope, and methodology, including 

our assessment of data reliability, is available in the reports cited in the 

related products list at the end of this statement.

First, I will discuss our 2015 report on guidance processes at USDA, 

Education, HHS, and DOL, specifically (1) how these agencies decide 

whether to issue regulations or guidance and (2) the extent to which they 

adhere to OMB requirements and internal controls when developing 

guidance.4

Agency guidance documents, even though they are not generally legally 

binding as regulations or statutes are, can have a significant effect, both 

because of their volume and because of their potential to prompt changes 

in the behavior of regulated parties and the general public.5 Guidance 

generally serves different purposes than those of regulations. Agencies 

also issue regulatory guidance that sets forth a policy on a statutory, 

regulatory, or technical issue, or an interpretation of a statutory or 

regulatory issue—as illustrated in figure 1 below. The processes by which 

agencies issue guidance and regulations are governed by statutes, 

executive orders, and agencies’ policies and procedures, with the aim of 

greater transparency and public participation, enhanced oversight, and 

reduced regulatory burdens.6

 4

We have also issued a report on Internal Revenue Service (IRS) guidance. See GAO, 

Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing 

Exemptions of Tax Regulations and Guidance, GAO-16-720 (Washington, D.C.: Sept. 6, 

2016). 

5

See Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 

Cornell L. Rev. 397, 400 (March 2007).

6

In particular, the Administrative Procedure Act (APA) establishes broadly applicable 

requirements for prior notice and public comment. 5 U.S.C. §§ 551–559. However, 

Congress sometimes enacts laws that direct an agency to issue rules without notice and 

comment. In addition, the APA recognizes that there are circumstances, such as 

responding to an emergency situation like a natural disaster, when providing for notice 

and comment might not be appropriate before issuing a final rule, See GAO, Federal 

Rulemaking: Agencies Could Take Additional Steps to Respond to Public Comments, 

GAO-13-21 (Washington, D.C.: Dec. 20, 2012).

Agencies Can Better 

Ensure Effectiveness 

of Guidance through 

Consistent Adherence 

with OMB 

Requirements and 

Internal Controls
Page 3 GAO-18-436T 

Figure 1: Hierarchy of Statutory and Regulatory Authority

Agency officials considered a number of factors before deciding whether 

to issue guidance or undertake rulemaking. Among these factors at the 

four agencies included in our analysis, a key criterion was whether 

officials intended for the document to be binding (in which case they 

issued a regulation).7 OMB’s Office of Information and Regulatory Affairs 

(OIRA) staff concurred that agencies understood what types of direction 

to regulated entities must go through the regulatory process.8 Officials 

 7

At some agencies certain types of guidance is considered legally binding. The Internal 

Revenue Service (IRS) has stated that, in addition to statute, and tax regulations, all 

guidance published in its Internal Revenue Bulletin can be relied upon by taxpayers as 

authoritative because IRS is bound by it. For more information, see GAO-16-720.

8

OIRA is the OMB organization responsible for the coordinated review of regulatory 

actions by executive agencies. OIRA also is responsible for providing meaningful 

guidance and oversight so that each agency’s regulations are consistent with applicable 

law, the President’s priorities, and the principles set forth in executive orders. 

Agencies Weighed Various 

Factors When Deciding 

Whether to Issue 

Regulations or Guidance
Page 4 GAO-18-436T 

from all four agencies also told us that they understood when guidance 

was inappropriate and when regulation was necessary. They said that 

they consulted with legal counsel when deciding whether to initiate 

rulemaking or issue guidance.

For example, HHS’s Administration for Community Living officials told us 

that they considered a number of factors, including whether the 

instructions to be disseminated were enforceable or merely good practice. 

Specifically, when Administration for Community Living officials noticed 

that states were applying issued guidance related to technical assistance 

and compliance for the state long-term care ombudsman program 

differently, they decided it would be best to clarify program actions 

through a regulation. Officials believed that a regulation would ensure 

consistent application of program requirements and allow them to enforce 

those actions. They issued the proposed rule in June 2013 and the final 

rule in February 2015.9 In another example, officials at USDA’s Food and 

Nutrition Service told us that the decision to issue guidance or undertake 

rulemaking depended on (1) the extent to which the proposed document 

was anticipated to affect stakeholders and the public, and (2) what the 

subagency was trying to accomplish with the issued document.10

The agencies used guidance for multiple purposes and differed in the 

amount of guidance they issued. The purposes of guidance included 

explaining or interpreting regulations, clarifying policies in response to 

questions or compliance findings, disseminating suggested practices or 

leadership priorities, and providing grant administration information. 

Guidance documents provide agencies valuable flexibility to help 

regulated agencies comply with agency regulations, and address new 

issues and circumstances more quickly than may be possible using 

rulemaking.

Guidance documents that meet OMB’s definition of “significant” are 

subject to the regulatory practices and requirements established by OMB. 

OMB defines a significant guidance document as guidance with a broad 

and substantial impact on regulated entities. An economically significant 

 9

78 Fed. Reg. 36,449 (June 18, 2013) (proposed rule). 80 Fed. Reg. 7704 (Feb. 11, 2015) 

(final rule).

10We reviewed guidance processes at the four departments and 25 of their selected 

subagencies, or components that (1) were within the requesting committee’s jurisdiction 

and (2) engaged in regulatory or grantmaking activities. For a complete list of 

subagencies, see GAO-15-368. 
Page 5 GAO-18-436T 

guidance document is a significant guidance document that may 

reasonably be anticipated to lead to an annual effect on the economy of 

$100 million or more, among other factors. Guidance that does not fall 

under the definition of “significant” is not subject to the OMB Bulletin, and 

those guidance procedures are left to agency discretion.11 The four 

agencies we reviewed considered few of their guidance documents to be 

significant. As of February 2015, agencies listed the following numbers of 

significant guidance documents on their websites: Education, 139; DOL, 

36; and USDA, 34.

12 We were unable to determine the number of 

significant guidance documents issued by HHS. All four agencies told us 

that they did not issue any economically significant guidance. OIRA staff 

told us they accepted departments’ determinations of which types of 

guidance meet the definition of significant guidance. Agencies also varied 

in the amount of guidance they issued, ranging from 10 to more than 100 

documents issued in a single year.

Agency officials said that mission or the types of programs administered 

can affect the number of guidance documents issued. For example, 

officials from DOL’s Bureau of Labor Statistics told us they rarely issue 

guidance—about 10 routine administrative memorandums each year 

related to the operation of two cooperative agreement statistical 

programs. In contrast, DOL’s Occupational Safety and Health 

Administration officials told us they have regularly issued guidance to 

assist with regulatory compliance, and could easily produce 100 new or 

updated products each year to provide guidance to regulated entities.

 11Although the APA does not generally prescribe processes for review of agency 

guidance, in 2007 OMB issued a Final Bulletin for Agency Good Guidance Practices 

(OMB Bulletin) that establishes policies and procedures for the development, issuance, 

and use of “significant” guidance documents. The Bulletin defines “significant guidance 

document” as a guidance document disseminated to regulated entities or the general 

public that may reasonably be anticipated to (1) lead to an annual effect on the economy 

of $100 million or more or adversely affect in a material way the economy, a sector of the 

economy, productivity, competition, jobs, the environment, public health or safety, or state, 

local, or tribal governments or communities; (2) create a serious inconsistency or 

otherwise interfere with an action taken or planned by another agency; (3) materially alter 

the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and 

obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal 

mandates, the President’s priorities, or the principles set forth in Executive Order 12866, 

as further amended. Guidance that does not fall under the definition of “significant” is not 

subject to the OMB Bulletin, and those guidance procedures are left to agency discretion. 

72 Fed. Reg. 3432 (Jan. 25, 2007).

12Education officials noted that their list of significant guidance documents includes 

documents issued over the past 40 years.
Page 6 GAO-18-436T 

We found opportunities for agencies to improve regulatory guidance 

processes by strengthening compliance with OMB requirements for 

significant guidance and the use of management controls for producing 

their guidance documents. In 2015, we made 11 recommendations to 

USDA, HHS, DOL and Education to better ensure the adherence to OMB 

requirements for approval and public access of regulatory guidance, to 

strengthen the use of internal controls in guidance processes, and to 

improve the usability of websites with online guidance, three of which 

remain open.13 USDA, DOL and Education have addressed 

recommendations concerning strengthening the application of 

management controls—internal controls—and improving their websites to 

ensure the public can easily find, access, and comment on online 

guidance. These recommendations for HHS remain open as well as an 

additional recommendation concerning developing written procedures for 

agency approval of written guidance. These actions would help to ensure 

appropriate review and use of these documents, and both could also 

facilitate opportunities for affected parties and stakeholders to provide 

feedback on those documents.

We found that agencies did not always adhere to OMB requirements for 

significant guidance. The OMB Final Bulletin for Agency Good Guidance 

Practices establishes standard elements that must be included in 

significant guidance documents and directs agencies to (1) develop 

written procedures for the approval of significant guidance, (2) maintain a 

website to assist the public in locating significant guidance documents, 

and (3) provide a means for the public to submit comments on significant 

guidance through their websites. Education and USDA had written 

procedures for the approval of significant guidance as directed by OMB. 

While DOL had written approval procedures, they were not available to 

the appropriate officials, and DOL officials noted that they required 

updating. HHS did not have any written procedures. We found that 

Education, USDA, and DOL consistently applied OMB’s public access 

and feedback requirements for significant guidance, while HHS did not.

 13GAO-15-368. 

Agencies Should Increase 

Adherence with OMB 

Requirements and Internal 

Controls

Adherence to OMB 

Requirements for Significant 

Guidance
Page 7 GAO-18-436T 

We also found opportunities for agencies to improve access to their 

guidance.14 In April 2015, we found that subagencies used different 

strategies to disseminate guidance and all relied primarily on posting the 

guidance on their websites.15 USDA, DOL, and Education posted their 

significant guidance on a departmental website as directed by OMB; at 

that time HHS did not, but has since posted such a page on its website in 

response to our recommendation. On their websites, agencies used 

several approaches —including organizing guidance by audience or topic 

and highlighting new or outdated guidance—to facilitate access. 

However, we identified factors that hindered online access, including long 

lists of guidance and documents dispersed among multiple web pages.

Opportunities also exist for agencies to use the web metrics they already 

collect to improve how guidance can be accessed. All agencies and their 

subagencies that we studied collected web metrics, and many used them 

to evaluate online guidance dissemination. However, many of these 

subagencies did not use metrics to improve how they disseminated 

guidance through their websites. Beyond their websites, subagencies 

found other ways to disseminate and obtain feedback on issued 

guidance, including focus groups, surveys, and direct feedback from the 

public at conferences, webinars, and from monitoring visits.

For guidance that does not meet OMB’s definition of significant, we found 

opportunities for agencies to improve guidance development, review, 

evaluation, and dissemination processes by strengthening their 

adherence to internal controls. Wider adoption of these practices could 

better ensure that agencies have internal controls in place to promote 

quality and consistency of their guidance development processes, and to 

ensure that guidance policies, processes, and practices achieve desired 

results, and prevent and detect errors. We recommended that agencies 

strengthen their application of internal controls to guidance practices by 

adopting practices, such as:

 14Our ability to access and find significant and nonsignificant guidance online varied. We 

reported in 2015 that agencies can use available guidelines, such as the Guidelines for 

Improving Digital Services developed by the federal Digital Services Advisory Group, to 

help them improve their communications and interactions with customers on their 

websites.

15While all components told us they relied primarily on their websites to disseminate 

guidance, they also used many other dissemination methods, including email and 

listservs, meetings, social media, and external partners.

Application of Internal Controls 

for Guidance Processes
Page 8 GAO-18-436T 

• Determining Appropriate Level of Review to Manage Risk: Most 

subagencies in our study managed risk by determining appropriate 

levels of review. Agencies face multiple risks when going through the 

guidance production process, such as legal challenges that issued 

guidance is asserting binding requirements without having gone 

through the rulemaking process. Agencies can manage risk by 

involving agency management in decisions to initiate guidance, 

prioritize among proposed guidance, and determine the appropriate 

level of review prior to issuance.

• Maintaining Written Policies and Procedures for the Production 

of Nonsignificant Guidance: Most subagencies we reviewed did not 

have written procedures for the production of non-significant 

guidance. Written procedures for guidance initiation, development, 

and review help ensure that actions are taken to address risks and 

enforce management’s directives when an agency is developing 

regulatory guidance. Documented procedures are an important 

internal control activity to help ensure that officials understand how to 

adequately review guidance before issuance.

• Ensuring Communication during the Guidance Development and 

Review Process: Most subagencies we reviewed had methods to 

ensure communication during the guidance development and review 

process. Communication procedures provide an opportunity for 

subagencies to get feedback from agency management, other federal 

agencies, and the public before the guidance issues. For example, 

officials told us that they conferred with other affected subagencies or 

federal departments to ensure consistency of their guidance during 

the development of guidance.

• Regularly Evaluating Whether Issued Guidance is Effective and 

Up to Date: Almost half of the subagencies we reviewed regularly 

evaluated whether issued guidance was effective and up-to-date. 

Agencies benefit from procedures to continually reassess and 

improve guidance processes. Without a regular review of issued 

guidance, agencies can miss the opportunity to revisit whether current 

guidance could be improved and thereby provide better assistance to 

regulated entities and grantees.
Page 9 GAO-18-436T 

Prior studies have indicated that agencies typically issue a larger number 

of regulations during the transition from the end of one presidential 

administration to the beginning of the next administration, relative to 

comparable periods earlier in the administration, a phenomenon often 

referred to as “midnight rulemaking.”16 The Edward “Ted” Kaufman and 

Michael Leavitt Presidential Transitions Improvements Act of 2015 

included a provision requiring us to review final significant regulations 

promulgated by executive departments during the 120-day presidential 

transition periods (September 23 through January 20) at the end of 

Presidents Clinton, Bush, and Obama’s administrations and compare 

them to each other and to regulations issued during the same 120-day 

period in nontransition years since 1996. Among other objectives, we 

assessed the extent to which there was variation in (1) the number of 

regulations and their characteristics, such as the types of rulemaking 

procedures agencies used; and (2) agencies’ reported compliance with 

procedural requirements for promulgating the regulations, such as 

requirements in the Congressional Review Act (CRA).17 CRA was 

enacted to better ensure that Congress has an opportunity to review and 

possibly disapprove regulations, in certain cases, before they take effect.

 16The Congressional Research Service, “Midnight Rulemaking: Background and Options 

for Congress,” (Washington, D.C.: Oct. 4, 2016). In 2012, a report on this topic was 

prepared for the consideration of the Administrative Conference of the United States: Jack 

M. Beermann, Midnight Rules: A Reform Agenda, Administrative Conference of the United 

States, May 14, 2012. 

17Pub. L. No. 114-136, § 5 130 Stat. 301, 307–308 (2016). We did not include rulemaking 

by independent regulatory agencies that are not under the direct control of the President. 

Compliance with the 

Congressional 

Review Act Could Be 

Strengthened
Page 10 GAO-18-436T 

During the transition periods at the end of each of the three 

administrations we reviewed, agencies published more economically 

significant and significant final regulations relative to comparable time 

periods earlier in each administration (see figures 2 and 3).18 In particular, 

the Clinton, Bush, and Obama administrations published on average 

roughly 2.5 times more economically significant regulations during 

transition periods than during nontransition periods. But agencies more 

often, relative to nontransition periods, provided the public an opportunity 

to influence the development of the transition-period regulations by 

providing advanced notice of their issuance in the Unified Agenda, and 

opportunities to comment on proposed regulations before they were 

finalized.19

 18Under Executive Order 12866, OMB reviews significant proposed and final rules from 

agencies, other than independent regulatory agencies, before they are published in the 

Federal Register. The order defines significant regulatory actions as those that: (1) have 

an annual effect on the economy of $100 million or more or adversely affect in a material 

way the economy, a sector of the economy, productivity, competition, jobs, the 

environment, public health or safety, or state, local, or tribal governments or communities; 

(2) create a serious inconsistency or otherwise interfere with an action taken or planned 

by another agency; (3) materially alter the budgetary impact of entitlements, grants, user 

fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal mandates, the President’s priorities, or the 

principles set forth in the executive order. For the purposes of GAO-18-183 and this 

statement, we differentiate between the results for “economically significant” regulations 

(criterion 1 above, i.e., generally those with annual economic effects greater than $100 

million) and the results for other significant regulations (criteria 2-4 above). We refer to the 

latter category as “significant regulations.” Exec. Order No. 12866, Regulatory Planning 

and Review, 58 Fed. Reg. 51,735 (Oct. 4, 1993).

19The semiannual Unified Agenda was established by Executive Order 12866 and 

provides uniform reporting of data on those regulatory and deregulatory activities under 

development or review throughout the federal government.

Agencies Published More 

Economically Significant 

and Significant Final 

Regulations and Provided 

More Opportunity for 

Public Participation
Page 11 GAO-18-436T 

Figure 2: Number of Final Economically Significant Regulations Published during Specified Presidential Transition and 

Nontransition Periods, 1996-2017

Note: For the purposes of GAO-18-183 and this statement, we differentiate between the results for 

“economically significant” regulations (i.e., generally those with annual economic effects greater than 

$100 million) and the results for other significant regulations. Exec. Order No. 12866, Regulatory 

Planning and Review, 58 Fed. Reg. 51,735 (Oct. 4, 1993).

Agencies typically publish a subset of economically significant regulations every calendar year during 

the autumn and early winter months, irrespective of whether a President is preparing to leave office. 

For example, the Department of the Interior updated regulations concerning hunting for migratory 

birds on federal and tribal lands during 18 of the 21 periods reviewed.
Page 12 GAO-18-436T 

Figure 3: Number of Final Significant Regulations Published during Specified Presidential Transition and Nontransition 

Periods, 1996-2017

Note: For the purposes of GAO-18-183 and this statement, we differentiate between the results for 

“economically significant” regulations (i.e., generally those with annual economic effects greater than 

$100 million) and the results for other significant regulations (defined as those that create a serious 

inconsistency or otherwise interfere with an action taken or planned by another agency; materially 

alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and 

obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the 

President's priorities, or the principles set forth in the executive order). Exec. Order No. 12866, 

Regulatory Planning and Review, 58 Fed. Reg. 51,735 (Oct. 4, 1993).

For the 2003-2004 period, 34 agencies submitted separate draft regulations to the Office of 

Information and Regulatory Affairs concerning government-wide debarment and suspension and 

requirements for drug-free workplaces. But these agencies published one final regulation on this 

topic. The OMB data we used for this figure counted this regulation 34 times instead of just once.

In their published regulations, agencies generally reported complying with 

four of five procedural requirements for promulgating regulations during 

both transition and nontransition periods–the Regulatory Flexibility Act 

(RFA), the Small Business Regulatory Enforcement Fairness Act 

(SBREFA), the Paperwork Reduction Act (PRA), and the Unfunded 

Some Regulations Did Not 

Comply with the 

Congressional Review Act
Page 13 GAO-18-436T 

Mandates Reform Act of 1995 (UMRA). These laws require agencies to 

consider the impact of regulations on small entities, impose additional 

requirements on the Environmental Protection Agency and the 

Occupational Safety and Health Administration to obtain input from small 

entities for rulemaking efforts that are expected to have a significant 

economic impact on a substantial number of small entities, require all 

agencies to minimize the burden on the public of information collections, 

and require agencies to prepare an assessment of the anticipated costs 

and benefits for any regulation that includes a federal mandate requiring 

nonfederal parties to expend resources without being provided funding to 

cover the costs, respectively.20 Agencies reported complying for nearly all 

economically significant regulations and the majority of significant 

regulations with these four laws. Agencies less often complied with one or 

more CRA requirements.21 Over 25 percent of economically significant 

regulations did not comply with the CRA (see figure 4). We estimated that 

15 percent of significant regulations published across all periods reviewed 

failed to meet at least one of the CRA requirements we reviewed.

 20Later, the Dodd-Frank Wall Street Reform and Consumer Protection Act imposed the 

SBREFA requirement for obtaining input from small entities on the Consumer Financial 

Protection Bureau, an independent regulatory agency not covered in GAO-18-183.

21CRA requires agencies to submit regulations to Congress and to us and to delay the 

effective date of certain regulations in order to provide Congress an opportunity to review 

and possibly disapprove of regulations before they become effective.
Page 14 GAO-18-436T 

Figure 4: Final Economically Significant Regulations Determined to be 

Noncompliant with the Congressional Review Act during Specified Presidential 

Transition and Nontransition Periods, 1996-2017

a

The noncompliance rate across all three transition periods combined was 26.9 percent, compared to 

24.3 percent during all nontransition periods combined.

b

For the purposes of GAO-18-183 and this statement, we differentiate between the results for 

“economically significant” regulations (i.e., generally those with annual economic effects greater than 

$100 million) and the results for other significant regulations. Exec. Order No. 12866, Regulatory 

Planning and Review, 58 Fed. Reg. 51,735 (Oct. 4, 1993).

The most common CRA deficiency for economically significant 

regulations was agencies’ failure to provide Congress the required time to 

review and possibly disapprove regulations, which we had also identified 

as a deficiency in previous work.22 Among the most active regulatory 

agencies for economically significant regulations, the Departments of 

 22GAO, Congressional Review Act, GAO-08-268T (Washington, D.C.: Nov. 6, 2007).
Page 15 GAO-18-436T 

Health and Human Services and Transportation had higher rates of 

noncompliance than the government-wide percentages for both the 

transition and nontransition periods we reviewed. However, 

noncompliance was not limited to these two agencies; 17 of the 23 

agencies that published economically significant regulations during the 

periods we reviewed had at least one noncompliant regulation.23

Though agencies are responsible for complying with CRA, OMB is 

responsible under Executive Order 12866 for oversight of agencies’

rulemaking, consistent with law, and reviews regulations before 

publication, which provides an opportunity to identify and help agencies 

avoid potential noncompliance. Economically significant regulations for 

which OMB completed its review within 3 months before the planned 

effective date were at high risk of not complying with CRA, thus 

increasing the risk that agencies would not provide Congress with the 

required time for its reviews. We recommended that OMB, as part of its 

regulatory review process, identify economically significant regulations at 

potential risk of not complying with CRA and work with agencies to 

ensure compliance. OMB staff did not take a position agreeing or 

disagreeing with the recommendation.

One of the common themes in our work over several decades is the need 

for transparency of the regulatory review process and opportunities for 

increasing public participation and congressional oversight. The potential 

effects of guidance underscore the need for consistent and wellunderstood processes for the development, review, dissemination, and 

evaluation of guidance. Further, we found that while there were increased 

opportunities for public participation for regulations promulgated at the 

end of Presidents’ terms, there are increasing instances of 

noncompliance with delay requirements under the Congressional Review 

Act. Ensuring that agencies consistently provide Congress with the 

required time to review, and possibly disapprove regulations, is important 

throughout a President’s term, and particularly following a presidential 

transition when Congress typically has a larger number of regulations to 

potentially review. Improvements made in transparency of the rulemaking 

process benefit not only the public, but congressional oversight.

 23See GAO-18-183 for a more detailed discussion of the scope and methodology.
Page 16 GAO-18-436T 

Chairman Gowdy, Ranking Member Cummings, and Members of the 

Committee, this concludes my prepared statement. Once again, I 

appreciate the opportunity to testify on these important issues. I would be 

pleased to address any questions you or other members of the 

Committee might have at this time.

For questions about this statement, please contact me at (202) 512-2660 

or nguyentt@gao.gov. Contact points for our Offices of Congressional 

Relations and Public Affairs may be found on the last page of this 

statement. Individuals making key contributions to this testimony were 

Tim Bober, Tara Carter, Colleen Corcoran, Robert Cramer, Alix Edwards, 

Shirley A. Jones, Heather Krause, Barbara Lancaster, Michael O’Neill, 

and Andrew J. Stephens.

GAO Contact and 

Staff 

Acknowledgments
Related GAO Products

Page 17 GAO-18-436T 

Federal Rulemaking: OMB Should Work with Agencies to Improve 

Congressional Review Act Compliance during and at the End of 

Presidents’ Terms. GAO-18-183. March, 13, 2018.

Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate 

Long-standing Exemptions of Tax Regulations and Guidance.

GAO-16-720. September 6, 2016.

Regulatory Guidance Processes: Selected Departments Could 

Strengthen Internal Control and Dissemination Practices. GAO-15-368. 

April 16, 2015.

Regulatory Guidance Processes: Agencies Could Benefit from Stronger 

Internal Control Practices. GAO-15-834T. September 23, 2015.

Federal Rulemaking: Agencies Could Take Additional Steps to Respond 

to Public Comments. GAO-13-21. December 20, 2012.

Related GAO Products

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