FEDERAL 

RULEMAKING

OMB Should Work 

with Agencies to 

Improve 

Congressional Review 

Act Compliance 

during and at the End 

of Presidents’ Terms

Report to Congressional Committees

March 2018

GAO-18-183

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-18-183, a report to 

congressional committees

March 2018

FEDERAL RULEMAKING

OMB Should Work with Agencies to Improve 

Congressional Review Act Compliance during and at 

the End of Presidents' Terms

What GAO Found

During transition periods at the end of presidential administrations, agencies 

published more final regulations and more frequently provided advanced notice

to the public on those regulations compared to nontransition periods. 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 and 

opportunities to comment on proposed regulations before they were finalized. 

In their published regulations, agencies reported that compliance with four of five 

procedural requirements was high during both transition and nontransition 

periods, but not with the Congressional Review Act (CRA). During all periods, 

agencies reported complying with requirements, such as the Regulatory 

Flexibility Act, for nearly all economically significant regulations and the majority 

of significant regulations. Agencies less often complied with one or more CRA 

requirements. (See figure.) Though agencies are responsible for complying with 

CRA, the Office of Management and Budget (OMB) is responsible 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. The most common CRA deficiency was agencies’ 

failure to provide Congress the required time to review and possibly disapprove 

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

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.

Economically Significant Regulations Determined to be Noncompliant with the 

Congressional Review Act 

View GAO-18-183. For more information, 

contact Heather Krause at (202) 512-6806 or 

Krauseh@gao.gov.

Why GAO Did This Study

The Presidential Transitions 

Improvements Act of 2015 includes a 

provision for GAO to assess multiple 

characteristics of final significant 

regulatory actions promulgated by 

executive departments during

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, GAO

assessed the extent to which there

was variation in 1) the number of 

regulations, their scope, and other 

indicators; and 2) agencies' reported 

compliance with procedural 

requirements for promulgating the 

regulations. To address these 

objectives, GAO reviewed the text of 

the regulations published in the 

Federal Register, and reviewed the 

universe of all 527 economically 

significant final regulations (generally 

those with an annual effect of $100 

million or more) published during the 

specified transition and nontransition 

periods and a generalizable stratified 

random sample of 358 of the 1,633 

significant final regulations published 

during the same time periods. 

What GAO Recommends

GAO recommends 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 agree or disagree with the 

recommendation.
Page i GAO-18-183 Federal Rulemaking

Letter 1

Background 5

Agencies Published More Final Regulations and More Frequently 

Provided Advanced Notice to the Public during Transition 

Periods 8

Nearly All Economically Significant Regulations Reported to the 

Public Compliance with Four Procedural Requirements, but a 

Quarter Did Not Comply with the Congressional Review Act 18

Variations Existed between Transition and Nontransition Periods 

in Agencies’ Anticipated Types of Economic Effects for 

Economically Significant Regulations 28

Conclusions 35

Recommendation for Executive Action 36

Agency Comments and Our Evaluation 36

Appendix I Objectives, Scope, and Methodology 39

Appendix II Additional GAO Analysis of Final Regulations 

Published During Specified Periods, 1996-2017 48

Appendix III GAO Contact and Staff Acknowledgments 70

Tables

Table 1: Agencies Publishing the Largest Number of Final 

Economically Significant Regulations during Specified 

Transition and Nontransition Periods, 1996-2017 11

Table 2: Agencies Publishing the Largest Number of Final 

Significant Regulations during Specified Transition and 

Nontransition Periods, 1996-2017 12

Table 3: Disposition of Sample of Significant Regulations 

Published during Transition and Nontransition Periods, 

1996 to 2017 41

Table 4: Agencies Publishing the Largest Number of Final 

Economically Significant Regulations during President 

Clinton’s Administration, 1996-2001 50

Contents
Page ii GAO-18-183 Federal Rulemaking

Table 5: Agencies Publishing the Largest Number of Final 

Economically Significant Regulations during President 

Bush’s Administration, 2001-2009 50

Table 6: Agencies Publishing the Largest Number of Final 

Economically Significant Regulations during President 

Obama’s Administration, 2009-2017 51

Table 7: Agencies Publishing the Largest Number of Final 

Significant Regulations during President Clinton’s 

Administration, 1996-2001 52

Table 8: Agencies Publishing the Largest Number of Final 

Significant Regulations during President Bush’s 

Administration, 2001-2009 53

Table 9: Agencies Publishing the Largest Number of Final 

Significant Regulations during President Obama’s 

Administration, 2009-2017 53

Table 10: Congressional Review Act Noncompliance Rates 

among the Most Active Regulatory Agencies for Final 

Economically Significant Regulations Published during 

Specified Transition and Nontransition Periods, 1996-

2017 64

Figures

Figure 1: Number of Final Economically Significant Regulations 

Published during Specified Transition and Nontransition 

Periods, 1996-2017 9

Figure 2: Number of Final Significant Regulations Published 

during Specified Transition and Nontransition Periods, 

1996-2017 10

Figure 3: Final Economically Significant Regulations Appearing in 

the Previous Spring’s Unified Agenda during Specified 

Transition and Nontransition Periods, 1996-2017 14

Figure 4: Final Significant Regulations Appearing in the Previous 

Spring’s Unified Agenda during Specified Transition and 

Nontransition Periods, 1996-2017 15

Figure 5: Final Economically Significant Regulations Preceded by 

a Notice of Proposed Rulemaking during Specified 

Transition and Nontransition Periods, 1996-2017 16

Figure 6: Final Significant Regulations Preceded by a Notice of 

Proposed Rulemaking during Specified Transition and 

Nontransition Periods, 1996-2017 17
Page iii GAO-18-183 Federal Rulemaking

Figure 7: Delay in Effective Date Requirements under the 

Congressional Review Act (CRA) 21

Figure 8: Final Economically Significant Regulations Determined 

to be Noncompliant with the Congressional Review Act 

during Specified Transition and Nontransition Periods, 

1996-2017 22

Figure 9: Final Significant Regulations Determined to be 

Noncompliant with the Congressional Review Act during 

Specified Transition and Nontransition Periods, 1996-

2017 25

Figure 10: Number of Final Economically Significant Regulations 

with Anticipated Economic Costs, Benefits, and Transfers 

during Specified Transition and Nontransition Periods, 

1996-2017 30

Figure 11: Extent to Which Agencies Monetized Anticipated 

Economic Costs Resulting from Final Economically 

Significant Regulations during Specified Transition and 

Nontransition Periods, 1996-2017 32

Figure 12: Extent to Which Agencies Monetized Anticipated 

Economic Benefits Resulting from Final Economically 

Significant Regulations during Specified Transition and 

Nontransition Periods, 1996-2017 33

Figure 13: Extent to Which Agencies Monetized Anticipated 

Transfers Resulting from Final Economically Significant 

Regulations during Specified Transition and Nontransition 

Periods, 1996-2017 34

Figure 14: Rate of Final Economically Significant Regulatory 

Activity Occurring Before and After the 2000, 2008, and 

2016 Elections Preceding Presidential Transitions 49

Figure 15: Median Length of OIRA Review (in Days) of Draft Final 

Economically Significant Regulations Published during 

Specified Transition and Nontransition Periods, 1996-

2017 55

Figure 16: Median Length of OIRA Review (in Days) of Draft Final 

Significant Regulations Published during Specified 

Transition and Nontransition Periods, 1996-2017 56

Figure 17: Agency Determinations under the Regulatory Flexibility 

Act Regarding the Effect of Final Economically Significant 

Regulations on Small Entities during Specified Transition 

and Nontransition Periods, 1996-2017 57

Figure 18: Agency Determinations under the Paperwork 

Reduction Act Regarding the Effect of Final Economically 
Page iv GAO-18-183 Federal Rulemaking

Significant Regulations on Information Collection 

Requirements during Specified Transition and 

Nontransition Periods, 1996-2017 58

Figure 19: Agency Determinations under the Unfunded Mandates 

Reform Act of 1995 Regarding the Effect of Final 

Economically Significant Regulations on Unfunded 

Mandates during Specified Transition and Nontransition 

Periods, 1996-2017 59

Figure 20: Agency Determinations under the Regulatory Flexibility 

Act Regarding the Effect of Final Significant Regulations 

on Small Entities during Specified Transition and 

Nontransition Periods, 1996-2017 61

Figure 21: Agency Determinations under the Paperwork 

Reduction Act Regarding the Effect of Final Significant 

Regulations on Information Collection Requirements 

during Specified Transition and Nontransition Periods, 

1996-2017 62

Figure 22: Agency Determinations under the Unfunded Mandates 

Reform Act of 1995 Regarding the Effect of Significant 

Final Regulations on Unfunded Mandates during 

Specified Transition and Nontransition Periods, 1996-

2017 63

Figure 23: Extent to Which Agencies Indicated Benefits Justified 

Costs for a Subset of Final Economically Significant 

Regulations Published during Specified Transition and 

Nontransition Periods, 1996-2017 66

Figure 24: Extent to Which Agencies Estimated Net Costs or 

Benefits for a Subset of Final Economically Significant 

Regulations Published during Specified Transition and 

Nontransition Periods, 1996-2017 67

Figure 25: Estimated Percentage of Final Significant Regulations 

with Anticipated Economic Costs, Benefits, and Transfers 

during Specified Transition and Nontransition Periods, 

1996-2017 69
Page v GAO-18-183 Federal Rulemaking

Abbreviations

APA Administrative Procedure Act

CRA Congressional Review Act

CRS Congressional Research Service

E.O. Executive Order

EPA Environmental Protection Agency

HHS Department of Health and Human Services

Interior Department of the Interior

NPRM Notice of Proposed Rulemaking

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

OSHA Occupational Safety and Health Administration

PRA Paperwork Reduction Act

RFA Regulatory Flexibility Act

RISC Regulatory Information Service Center

SBREFA Small Business Regulatory Enforcement Fairness 

Act

Transportation Department of Transportation

UMRA Unfunded Mandates Reform Act of 1995

XML Extensible Markup Language

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Page 1 GAO-18-183 Federal Rulemaking

441 G St. N.W.

Washington, DC 20548

March 13, 2018

Congressional Committees

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.1 This phenomenon is 

often referred to as “midnight rulemaking.” Officials from outgoing 

administrations generally attribute this increased regulatory activity to 

agencies completing long-planned regulatory initiatives. However, the 

Congressional Research Service (CRS) has noted that some members of 

Congress and individuals outside the government have expressed 

concerns that “midnight rules” may be rushed through the analytical and 

procedural processes agencies are expected to use, providing fewer 

opportunities for the public to provide input, and therefore resulting in 

lower quality regulations. CRS has also pointed out that presidential 

transitions in which party control of the White House changes–which 

occurred during the four most recent transitions in 1993, 2001, 2009, and 

2017–may increase the incentive for Presidents and agencies to engage 

in midnight rulemaking because it may be difficult for the subsequent 

administration to change or eliminate regulations after they have taken 

effect.2

Section 5 of the Edward “Ted” Kaufman and Michael Leavitt Presidential 

Transitions Improvements Act of 2015 includes a provision for us to 

assess final significant regulatory actions promulgated by executive 

departments during specified presidential transition periods and to 

analyze and compare multiple characteristics of regulations issued during 

these transition periods to each other and to regulations issued during the 

same 120-day periods in nontransition years since 1996.3 The transition 

 1

The 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. 

2

The Congressional Research Service, “Can a New Administration Undo a Previous 

Administration’s Regulations?” (Washington, D.C.: Nov. 21, 2016). See also the October 

2016 CRS report on midnight rulemaking.

3

Pub. L. No. 114-136, § 5 130 Stat. 301, 307–308 (2016). 

Letter
Page 2 GAO-18-183 Federal Rulemaking

periods identified in the act are those ending on January 20 in 2001, 

2009, and 2017, which occurred at the end of the administrations of 

Presidents Clinton, Bush, and Obama. For the transition periods, and 

among these transition periods and the same 120-day periods in 

nontransition years, our objectives were to assess the extent to which 

there were variations in (1) the number of regulations and other indicators 

related to the scope and transparency of these regulations; (2) agencies’

reported compliance with procedural requirements for promulgating the 

regulations; and (3) the anticipated economic effects agencies reported 

would result from the regulations.

For each of the three transition periods and the 18 other periods cited in 

the mandate, we reviewed what the act defines as “covered regulations”

published by executive agencies in the Federal Register. For purposes of 

this review, executive agencies are those cabinet departments and other 

agencies that answer directly to the President and exclude the 

independent regulatory agencies.4 The definition of a “covered regulation”

in the mandate is the same as the definition of a final significant 

regulatory action under Executive Order (E.O.) 12866.5 Under E.O. 

12866, the Office of Management and Budget (OMB) reviews significant 

proposed and final regulations from all federal agencies (other than 

independent regulatory agencies) before they are published in the 

Federal Register. The order defines significant regulatory actions as 

those that are likely to result in a rule that may

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 

(generally referred to as “economically significant” regulations);

2. Create a serious inconsistency or otherwise interfere with an action 

taken or planned by another agency;

 4

“Independent regulatory agencies” are the boards and commissions identified as such in 

the Paperwork Reduction Act, such as the Securities and Exchange Commission. 44 

U.S.C. § 3502(5). 

5

Executive Orders 13563, 13771, and 13777 subsequently reaffirmed E.O. 12866. Exec. 

Order No. 12866, Regulatory Planning and Review, 58 Fed. Reg. 51,735 (Oct. 4, 1993); 

Exec. Order No. 13563, Improving Regulation and Regulatory Review, 76 Fed. Reg. 3821 

(Jan. 21, 2011); and Exec. Order. No. 13771, Reducing Regulation and Controlling 

Regulatory Costs, 82 Fed. Reg. 9339 (Feb. 3, 2017); and Exec. Order No. 13777, 

Enforcing the Regulatory Reform Agenda, 82 Fed. Reg. 12,285 (Mar. 1, 2017).
Page 3 GAO-18-183 Federal Rulemaking

3. Materially alter the budgetary effects 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 from legal mandates, the 

President’s priorities, or the principles set forth in the executive order.

For the purposes of this report, 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, i.e., those 

expected to have less than $100 million in economic effects but are 

deemed significant under the order’s other three definitions of 

significance). We will refer to the latter category as “significant 

regulations.” We primarily relied on OMB’s Reginfo.gov database on 

regulations reviewed under E.O. 12866 to compile a list of final 

economically significant and final significant regulations published during 

the specified periods.6 We refined and supplemented the lists from the 

Reginfo.gov database with information from our database on rules 

submitted to us under the Congressional Review Act (CRA), and the 

Government Printing Office’s Federal Digital System database on the 

Federal Register.

7 To test the reliability of these databases, we reviewed 

relevant documentation, interviewed knowledgeable agency officials, 

looked for missing data and outliers (for example, by identifying missing 

records or those included in error), traced a sample of entries to source 

documents, and conducted additional checks. We concluded that the data 

were sufficiently reliable for our purposes.

We reviewed the universe of all 527 final economically significant 

regulations published during the specified periods and a generalizable 

stratified random sample of 358 final significant regulations from the 

population of 1,633 final significant regulations published during the 

specified periods. For economically significant regulations, we can 

provide precise statistics on the extent of a finding, because we reviewed 

the universe. For significant regulations, our findings are based upon a 

sample designed to achieve a margin of error no greater than plus or 

 6

See https://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp. 

7

CRA generally requires agencies to submit rules to both Houses of Congress and the 

U.S. Comptroller General before the rules can become effective. 5 U.S.C. § 801(a)(1)(A). 

The Federal Register is a legal newspaper published every business day by the National 

Archives and Records Administration containing legal documents and notices pertaining to 

federal agencies, including rules and regulations.
Page 4 GAO-18-183 Federal Rulemaking

minus 7 percentage points at the 95 percent level of confidence for each 

presidential transition period and the nontransition periods combined. Our 

findings for the sample are generalizable for the population of all covered 

significant regulations published in each transition period and, collectively, 

all nontransition periods, but are not generalizable to the individual 

agencies that published those regulations.

To assess the number of regulations and other variations related to the 

scope and transparency of these regulations, we tallied total numbers of 

final regulations published during each specified period. We identified 

whether the regulations were economically significant or significant, and 

which agencies had published the regulations to assess scope. We also 

reviewed other indicators, such as whether the final regulation had a prior 

proposed rule and whether the agency had provided advanced notice that 

the regulation was being developed in the Unified Agenda, to provide 

insights on the type of rulemaking procedures that agencies used and the 

transparency of those rulemakings.

To assess variations in agencies’ compliance with procedural 

requirements and the anticipated economic effects of regulations, we 

reviewed the published text of the regulations and, for regulations that 

were also major rules, the reports that we prepared for Congress under 

CRA.8 We reviewed agencies’ reported compliance with procedural 

requirements for promulgating regulations under five statutes—CRA, the 

Regulatory Flexibility Act (RFA), the Paperwork Reduction Act (PRA), the 

Unfunded Mandates Reform Act of 1995 (UMRA), and the Small 

Business Regulatory Enforcement Fairness Act (SBREFA). We also 

reviewed the published regulations to see whether agencies identified 

expected economic effects (benefits, costs, and transfers).9 Consistent 

with our prior governmentwide review of regulations, we did not evaluate 

the agencies’ decisions regarding procedural requirements or their 

determinations regarding the potential effects of their regulations. Instead, 

we are providing information about what the agencies published in the 

 8

A major rule is one that, among other things, has resulted in or is likely to result in an 

annual effect on the economy of $100 million or more. This is similar, but not identical to, 

the definition of an economically significant rule under E.O. 12866. The background 

section of this report provides further explanation. 

9

Office of Management and Budget, Circular A-4: Regulatory Analysis, (Washington, D.C.:

2003). According to Circular A-4, “transfer” regulations primarily involve monetary 

payments from one group in society to another and do not affect total resources available 

to society.
Page 5 GAO-18-183 Federal Rulemaking

Federal Register. Appendix I contains more information on our objectives, 

scope, and methodology.

We conducted this performance audit from May 2016 to March 2018 in 

accordance with generally accepted government 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.

Federal agencies implement specific elements of laws through 

regulations, which typically require or prohibit certain actions. Congresses 

and Presidents have required agencies to comply with multiple procedural 

and analytical requirements prior to issuing regulations.

• Administrative Procedure Act (APA).10 APA established the basic 

framework of administrative law governing federal agency action, 

including rulemaking. Before promulgating a regulation, agencies are 

generally required to publish a notice of proposed rulemaking (NPRM) 

in the Federal Register and take comments concerning the proposed 

rule. However, agencies may issue final rules without the use of an 

NPRM in certain cases, including when the agency determines for 

“good cause” that notice and comment procedures are “impracticable, 

unnecessary, or contrary to the public interest.”11 Further, Congress 

sometimes enacts laws that direct an agency to issue regulations 

without notice and comment.12

• Regulatory Flexibility Act.13 RFA was enacted in response to 

concerns about the effect that federal regulations can have on small 

entities. RFA requires agencies to consider the impact of their 

regulations on small entities and to prepare regulatory flexibility 

analyses, unless the head of the agency certifies that the rule would 

 10Pub. L. No. 404, 60 Stat. 237, ch. 324, §§ 1-12 (1946), codified as amended at 5 U.S.C. 

§§ 551-559, 701-706, 1305, 3105, 3344, 5372, 7521.

115 U.S.C. § 553(b)(B). 

12See, GAO, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to 

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

13Pub. L. No. 96-354, 94 Stat. 1164 (1980), codified as amended at 5 U.S.C. §§ 601-612.

Background
Page 6 GAO-18-183 Federal Rulemaking

not have a “significant economic impact upon a substantial number of 

small entities.”14

• Paperwork Reduction Act.15 PRA was enacted to help minimize the 

burden that federal information collections (e.g., forms, surveys, or 

questionnaires) impose on the public, while maximizing their public 

benefit. PRA requires agencies to provide public notice, solicit 

comments, and request approval by OMB before imposing new 

information collection requirements.

• Unfunded Mandates Reform Act of 1995.16 UMRA was enacted to 

address concerns about federal statutes and regulations that require 

nonfederal parties to expend resources to achieve legislative goals 

without being provided funding to cover the costs. Among other 

things, UMRA generally requires federal agencies to prepare a written 

statement containing a “qualitative and quantitative assessment of the 

anticipated costs and benefits” for any rule that includes a federal 

mandate that may result in the expenditure of $100 million or more in 

any 1 year by state, local, and tribal governments in the aggregate, or 

by the private sector.17

• Small Business Regulatory Enforcement Fairness Act.18 Under 

SBREFA, the Environmental Protection Agency (EPA) and the 

Occupational Safety and Health Administration (OSHA) are required 

to convene Small Business Review Panels (also known as SBREFA 

panels) for rulemaking efforts that are expected to have a significant 

economic impact on a substantial number of small entities.19 These 

panels are intended to seek direct input early in the rulemaking 

 145 U.S.C. §§ 603, 604.

15PRA was originally enacted into law in 1980. Pub. L. No. 96-511, 94 Stat. 2812 (1980). It 

was reauthorized with minor amendments in 1986, and was reauthorized a second time 

with more significant changes in 1995, Pub. L. No. 99-591, 100 Stat. 3341 (1986); Pub. L. 

No. 104-13, 109 Stat. 163 (1995). 44 U.S.C. §§ 3501-3520.

16Pub. L. No. 104-4, 109 Stat. 48 (1995), codified in scattered sections of title 2 of the 

United States Code.

17The dollar thresholds in UMRA are in 1996 dollars and are adjusted annually for 

inflation.

18Pub. L. No. 104-121, § 244, 110 Stat. 847, 867–868 (1996).

19Later, the Dodd-Frank Wall Street Reform and Consumer Protection Act imposed the 

requirement for convening SBREFA panels on the Consumer Financial Protection Bureau, 

an independent regulatory agency not covered by this report.
Page 7 GAO-18-183 Federal Rulemaking

process from small entities that would be impacted by the 

rulemakings.

• Congressional Review Act.20 CRA was enacted to better ensure 

that Congress has an opportunity to review and possibly disapprove 

regulations, in certain cases, before they become effective. CRA 

established expedited procedures by which Congress may disapprove 

agencies’ regulations by introducing a resolution of disapproval that, if 

adopted by both Houses of Congress and signed by the President, 

can nullify an agency’s action. CRA states that an agency may not 

reissue the regulation in “substantially the same form,” as a regulation 

Congress disapproved. CRA requires us to provide Congress with a 

report on rules OMB’s Office of Information and Regulatory Affairs 

(OIRA) determines to be major rules, including our assessment of the 

issuing agency’s compliance with the procedural steps required by 

various acts and executive orders governing the rulemaking 

process.21 CRA’s definition of a major rule is similar to E.O. 12866’s 

definition of economically significant rules, and generally, 

economically significant regulations are classified for purposes of 

CRA as major rules and significant regulations are classified as 

nonmajor rules.22 CRA generally provides Congress time to review 

major rules before those rules take effect.

• Executive Orders and Relevant Guidance. In addition to the 

statutory requirements described above, executive agencies must 

also follow requirements Presidents have set in executive orders and 

related guidance:

• Role of OIRA: Under E.O. 12866, issued in 1993, OIRA reviews 

regulations deemed significant. The Administrator of OIRA is 

responsible for providing meaningful guidance and oversight with 

respect to regulatory planning and review to the extent permitted 

by law. Further, the order states that OIRA is to be the repository 

of expertise concerning regulatory issues.

 20Pub. L. No. 104-121, § 251, 110 Stat. 847, 868–874 (1996), codified at 5 U.S.C. §§ 

801–808. 

215 U.S.C. § 801(a)(2)(A).

22Major and economically significant rules are subject to the same $100 million economic 

effect threshold, but vary in that the definition of major is broader than that of economically 

significant. Rules that may be designated as major under CRA but not economically 

significant under E.O. 12866 include those that would have a significant adverse effect on 

the ability of United States-based enterprises to compete with foreign based enterprises in 

domestic and export markets.
Page 8 GAO-18-183 Federal Rulemaking

• Role of agencies and assessment of costs and benefits: 

Among other things, under E.O. 12866 agencies are responsible 

for developing regulations and assuring that the regulations are 

consistent with applicable law. The order also requires agencies to 

prepare an agenda of all regulations under development or 

review. For economically significant regulations, E.O. 12866 

requires agencies to provide to OIRA (unless prohibited by law) an 

assessment, including the underlying analysis, of the costs and 

benefits anticipated from the regulatory action and feasible 

alternatives. For significant regulations, E.O. 12866 requires 

agencies to provide to OIRA an assessment of the potential costs 

and benefits anticipated from the planned regulatory action. 

Circular A-4, published in 2003, provides guidance to agencies on 

how to conduct the required analysis and, among other things, 

directs agencies to estimate the costs and benefits of a regulation 

and “transfer” payments that may result from the regulation.23

Transfer regulations redistribute income from (usually) taxpayers 

to program beneficiaries (e.g., Medicare recipients), but generally 

do not result in economic benefits or costs.

The three administrations published a higher number of economically 

significant and significant final regulations at the end of each President’s 

second term compared to the nontransition periods. (See figures 1 and 

2.) The administrations published on average roughly 2.5 times more 

economically significant regulations during their transition periods than 

during nontransition periods.

 23With Circular A-4, OMB replaced both its guidance (2000) and “best practices” (1996) on 

how to conduct economic analysis.

Agencies Published 

More Final 

Regulations and More 

Frequently Provided 

Advanced Notice to 

the Public during 

Transition Periods
Page 9 GAO-18-183 Federal Rulemaking

Figure 1: Number of Final Economically Significant Regulations Published during Specified Transition and Nontransition 

Periods, 1996-2017

Note: 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 10 GAO-18-183 Federal Rulemaking

Figure 2: Number of Final Significant Regulations Published during Specified Transition and Nontransition Periods, 1996-2017

a

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

Our analysis also showed that within their transition periods (September 

23 through January 20), the administrations of Presidents Clinton and 

Obama increased their rate of economically significant rulemaking 

following the elections held in 2000 and 2016 (between Election Day in 

November and January 20), while President Bush’s administration 

decreased the rate of economically significant rulemaking following the 

2008 election. (See appendix II.)
Page 11 GAO-18-183 Federal Rulemaking

We found that the majority of economically significant regulations were 

published by a subset of agencies across the three administrations and 

between transition and nontransition periods. In particular, the 

Department of Health and Human Services (HHS) published one-third of 

the economically significant regulations we reviewed across all periods 

and was the most active agency in both transition and nontransition 

periods. (See table 1.) For example, the Centers for Medicare & Medicaid 

Services typically published regulations every calendar year describing 

reimbursement rates for medical providers serving Medicare patients.

Table 1: Agencies Publishing the Largest Number of Final Economically Significant Regulations during Specified Transition 

and Nontransition Periods, 1996-2017 

Transition Periods

(3 120-day periods spanning September 23 to January 20 

of 2000-2001, 2008-2009, and 2016-2017)

Nontransition Periods

(18 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Health and Human 

Services

46 29% Health and Human 

Services

131 35%

Agriculture 18 12% Interior 44 12%

Environmental 

Protection Agency

14 9% Agriculture 34 9%

Interior 12 8% Environmental 

Protection Agency

31 8%

Transportation 11 7% Transportation 21 6%

Labor 11 7%

Other Agencies 44 28% Other Agencies 110 30%

Total 156 100% Total 371 100%

Source: GAO analysis of published regulations. | GAO-18-183

For significant regulations, HHS was the most active agency during both 

transition and nontransition periods. (See table 2.)24 However, significant 

rulemaking was less concentrated in a subset of agencies than was 

economically significant rulemaking. Specifically, five of the agencies that 

published the largest number of economically significant regulations 

accounted for between 65 and 70 percent of these regulations during 

 24Our sample was not designed to provide estimates of significant regulations published 

by individual agencies during individual transition periods and the nontransition periods. 

Thus, we used data from Reginfo.gov to identify the most active agencies. 

Economically Significant 

Regulations Published in 

Both Transition and 

Nontransition Periods 

Were Concentrated in 

Certain Agencies
Page 12 GAO-18-183 Federal Rulemaking

both transition and nontransition periods, while the five agencies that 

published the largest number of significant regulations accounted for 42 

percent of these regulations during both transition and nontransition 

periods.25

Table 2: Agencies Publishing the Largest Number of Final Significant Regulations during Specified Transition and 

Nontransition Periods, 1996-2017 

Transition Periods

(3 120-day periods spanning September 23 to January 20 

of 2000-2001, 2008-2009, and 2016-2017)

Nontransition Periods

(18 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Health and Human 

Services

39 11% Health and Human 

Services

138 11%

Environmental 

Protection Agency

32 9% Environmental 

Protection Agency

122 10%

Agriculture 32 9% Agriculture 100 8%

Office of Personnel 

Management

26 7% Office of Personnel 

Management

84 7%

Labor 23 6% Transportation 77 6%

Other Agencies 207 58% Other Agencies 753 59%

Total 359 100% Total 1274 100%

Source: GAO analysis of data from Reginfo.gov on the number of draft significant regulations submitted to the Office of Information and Regulatory Affairs for review. | GAO-18-183

Note: Some percentages do not add up to 100 percent due to rounding.

To provide perspective on the transparency of regulatory activity and the 

types of rulemaking procedures agencies used during transitions, we 

examined two indicators: 1) whether regulations were advertised in the 

previous spring’s Unified Agenda and 2) whether the final regulation was 

preceded by a proposed rule or NPRM:

• Prior Appearance in the Unified Agenda: The semi-annual Unified 

Agenda was established by E.O. 12866 and provides uniform 

reporting of data on those regulatory and deregulatory activities under 

development or review throughout the federal government. By 

including a planned regulation in the previous spring’s Unified 

 25For economically significant regulations published during transition periods, we included 

Labor in Table 1 because it published the same number of regulations as Transportation, 

but we excluded Labor from the calculation presented above to allow for consistent 

comparisons. For more information about the most active agencies during individual 

administrations for economically significant and significant regulations, see appendix II.

For Economically 

Significant Regulations, 

Agencies More Frequently 

Provided Advanced Notice 

to the Public during 

Transition Periods
Page 13 GAO-18-183 Federal Rulemaking

Agenda, policy makers provided members of the public with several 

months of notice before a final regulation was published during any of 

the transition or nontransition periods.26

• Notice of Proposed Rulemaking: The notice and comment process 

was established by the APA and gives the public an opportunity to 

provide information to agencies on the potential effects of a regulation 

or to suggest alternatives for agencies to consider before the agency 

publishes the final regulation. By publishing an NPRM, policy makers 

provided members of the public with an opportunity to influence the 

development of the regulation.

Overall, we found that agencies more frequently provided advanced 

notice of regulations to the public during transition periods by announcing 

planned activities in the Unified Agenda and publishing NPRMs. A higher 

percentage of economically significant regulations appeared in the 

previous spring’s Unified Agenda during Presidents Bush’s and Obama’s 

transition periods compared to nontransition periods. (See figure 3.) 

President Clinton’s administration published a smaller percentage of 

regulations in the Unified Agenda during its transition period compared to 

its nontransition periods. This decrease is explained by the Department of 

the Interior (Interior) and HHS not entering four regulations they typically 

update each year into the spring 2000 Unified Agenda pertaining to 

migratory bird hunting and Medicare.

 26We do not provide the precise number of months because the Unified Agenda has been 

published at different times during the spring and the regulations reviewed were published 

between September 23 and January 20 of the following calendar year. The Unified 

Agenda can be accessed at https://www.reginfo.gov/public/do/eAgendaMain. 
Page 14 GAO-18-183 Federal Rulemaking

Figure 3: Final Economically Significant Regulations Appearing in the Previous Spring’s Unified Agenda during Specified 

Transition and Nontransition Periods, 1996-2017

Notes: Because no Unified Agenda was published in the spring of 2012, we used the Unified Agenda 

published in the fall of 2011 as an indicator of advanced notice of the regulations published during the 

2012-2013 nontransition period.

Some percentages do not add up to 100 percent due to rounding.

For significant regulations, we estimate that a higher percentage of 

regulations published during Presidents Bush’s and Obama’s transition 

periods appeared in the previous spring’s Unified Agenda compared to 

President Clinton’s transition period. However, we found no statistical 

differences between the nontransition periods combined and any of the 

three transition periods. (See figure 4.)
Page 15 GAO-18-183 Federal Rulemaking

Figure 4: Final Significant Regulations Appearing in the Previous Spring’s Unified Agenda during Specified Transition and 

Nontransition Periods, 1996-2017

Notes: Some percentages do not add up to 100 percent due to rounding.

Because no Unified Agenda was published in the spring of 2012, we used the Unified Agenda 

published in the fall of 2011 as an indicator of advanced notice of the regulations published during the 

2012-2013 nontransition period.

Across all three administrations, economically significant regulations 

published during transition periods were more often preceded by 

proposed regulations compared with those published during nontransition 

periods. (See figure 5.)
Page 16 GAO-18-183 Federal Rulemaking

Figure 5: Final Economically Significant Regulations Preceded by a Notice of Proposed Rulemaking during Specified 

Transition and Nontransition Periods, 1996-2017

We estimated that significant regulations published during Presidents 

Clinton’s and Bush’s transition periods were more often preceded by 

proposed regulations than significant regulations published during 

nontransition periods. However, we found no statistical differences 

between President Obama’s transition period and the other transition and

nontransition periods. (See figure 6.)
Page 17 GAO-18-183 Federal Rulemaking

Figure 6: Final Significant Regulations Preceded by a Notice of Proposed Rulemaking during Specified Transition and 

Nontransition Periods, 1996-2017
Page 18 GAO-18-183 Federal Rulemaking

Regulatory Flexibility Act (RFA), Paperwork Reduction Act (PRA), 

and the Unfunded Mandates Reform Act of 1995 (UMRA): We found 

that 91 percent of economically significant regulations across all periods 

reviewed explained to the public the determinations the agencies made 

regarding these three procedural requirements. Further, there was little 

difference between transition and nontransition periods in whether 

agencies provided explanation of these three procedural requirements.27

For the regulations that did contain explanation, agencies indicated that 

more economically significant regulations published during transition 

periods than in nontransition periods: (1) would not have a significant 

impact on a substantial number of small entities (RFA), (2) contained 

information collection requirements on nonfederal entities (PRA), and (3) 

generally could impose federal mandates on nonfederal entities (UMRA). 

For significant regulations, we estimate that 64 percent across all periods 

reviewed provided explanation to the public of the determinations the 

agencies made regarding these three procedural requirements.28 More 

 27For the transition periods combined, this was 93 percent. For the nontransition periods 

combined, this was 90 percent. 

28Our 95 percent confidence interval for the estimate provided above was between 59 and 

70 percent.

Nearly All 

Economically 

Significant 

Regulations Reported 

to the Public 

Compliance with Four 

Procedural 

Requirements, but a 

Quarter Did Not 

Comply with the 

Congressional 

Review Act

Agencies Reported to the 

Public that They Complied 

with Four Procedural 

Requirements for Nearly 

All Economically 

Significant Regulations 

and the Majority of 

Significant Regulations
Page 19 GAO-18-183 Federal Rulemaking

specific information about the determinations agencies reached is 

presented in appendix II.

For economically significant and significant regulations that did not 

contain explanations of one or more of these procedural requirements, 

this does not necessarily indicate noncompliance by the agency. An 

agency may not need to address a particular procedural requirement if 

the substance of the rule or exceptions and thresholds in the requirement 

lead the agency to determine that a specific regulation did not trigger the 

requirement. For example, regulations that were significant but not 

economically significant under E.O. 12866 would not be expected to 

contain a federal mandate that would result in the expenditure of $100 

million or more in any 1 year, so would not trigger the requirement for an 

UMRA written statement.29

Small Business Regulatory Enforcement Fairness Act (SBREFA):

EPA and OSHA reported holding small business review panels for 16 

economically significant regulations reviewed, and we confirmed that the 

proceedings of all but one of these panels had been documented on the 

Small Business Administration’s website.30 EPA also reported holding a 

small business review panel for one of the significant regulations we 

reviewed, and we confirmed that this proceeding also had been 

documented.

 29See GAO, Federal Mandates: Few Rules Trigger Unfunded Mandates Reform Act, 

GAO-11-385T (Washington, D.C.: Feb. 15, 2011).

30The exception was an EPA regulation published on December 1, 2009. The agency 

reported that it had voluntarily convened a panel, but did not complete the panel process. 

The agency certified that the regulation would not have a significant economic impact on a 

substantial number of small entities.
Page 20 GAO-18-183 Federal Rulemaking

CRA 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. We reviewed agencies’ compliance with 

the requirements to: (1) submit the regulation to Congress and to us, (2) 

provide the required delay between submission of the regulation to 

Congress and us and its effective date, and (3) provide the required delay 

between publication of the regulation and its effective date.31 See figure 7 

for these requirements regarding delays in effective dates.

 31See Appendix I for a more specific explanation of how we did the analysis. 

Over 25 Percent of 

Economically Significant 

Regulations and an

Estimated 15 Percent of 

Significant Regulations 

Did Not Comply with the 

Congressional Review Act
Page 21 GAO-18-183 Federal Rulemaking

Figure 7: Delay in Effective Date Requirements under the Congressional Review Act 

(CRA)

Note: Generally, major rules are those with an annual effect on the economy of $100 million or more, 

which is similar to the definition of economically significant rules under Executive Order 12866.

Our analysis determined that 132 of the 527 economically significant 

regulations across all periods reviewed failed to meet at least one of the 

requirements described above, and none of these regulations included 
Page 22 GAO-18-183 Federal Rulemaking

agencies claiming “good cause,” which would have allowed them to delay 

the effective date. (See figure 8.)32

Figure 8: Final Economically Significant Regulations Determined to be 

Noncompliant with the Congressional Review Act during Specified 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.

 32Twenty-five economically significant regulations across all periods reviewed were 

submitted to us as nonmajor rules and our analysis recognized that there is no 60-day 

delay requirement for these; nonmajor rules may take effect after submission to Congress. 

For more information, see appendix I.
Page 23 GAO-18-183 Federal Rulemaking

We found that noncompliance for economically significant regulations was 

primarily associated with agencies’ failure to delay the effective date of 

their regulations, while the failure to submit regulations to Congress and 

us accounted for a smaller proportion of the deficiencies.33 Of the 132

noncompliant economically significant regulations:

• 95 did not provide the required delay between the submission of the 

regulation to Congress and us and the effective date.34 Further, 

agencies generally missed the deadline by more than 5 days (70 of 92

regulations).35 It is our practice to alert the relevant congressional 

committees when we observe this particular deficiency in our major 

rule reports.36 Further, we also reported to Congress in 2007 that 

there appeared to be a broader pattern of noncompliance with this 

requirement, noting: “A consistent difficulty in implementing CRA has 

been the failure of some agencies to delay the effective date of major 

rules for 60 days as required by CRA.”37

• 74 did not provide the required delay between publication in the 

Federal Register and the effective date.38 Once again, agencies 

generally missed this deadline by more than 5 days (62 of 74

regulations). It is our practice to alert the relevant congressional 

committees when we observe this particular deficiency in our major 

rule reports.39

 33Our analysis accounted for the different delay requirements for major and nonmajor 

rules.

34For regulations that appeared potentially noncompliant based on the date submitted to 

us, we checked the Congressional Record to see if the regulation had been submitted to 

at least one House of Congress within the required timeframe. 

35Three of the 95 noncompliant regulations were nonmajor rules.

36For example, see GAO, Department of Transportation, National Highway Traffic Safety 

Administration: Federal Motor Vehicle Safety Standards; Minimum Sound Requirements 

for Hybrid and Electric Vehicles, B-329527 (Washington, D.C.: Nov. 2, 2017). 

37GAO, Congressional Review Act, GAO-08-268T (Washington, D.C.: Nov. 6, 2007). 

38The subtotals for these two deficiencies are larger than the total number of noncompliant 

regulations because some noncompliant regulations had both deficiencies.

39For example, see GAO, Department of Transportation, Federal Motor Carrier Safety 

Administration: Commercial Driver’s License Drug and Alcohol Clearinghouse, B-328675

(Washington, D.C.: Dec. 27, 2016). 
Page 24 GAO-18-183 Federal Rulemaking

• 10 had not been submitted to us as of November 13, 2017.40

Among the most active regulatory agencies for economically significant 

regulations, HHS and the Department of Transportation (Transportation) 

had higher rates of noncompliance than the government-wide 

percentages for both the transition and nontransition periods we 

reviewed. (See table 10 in appendix II.)41 However, noncompliance was 

not limited to HHS and Transportation; 17 of the 23 agencies that 

published economically significant regulations during the periods we 

reviewed had at least one noncompliant regulation. As noted previously, 

our sample of significant regulations was not designed to provide 

estimates concerning individual agencies’ noncompliance with CRA.

In addition, we estimate that 15 percent of significant regulations 

published across all periods reviewed failed to meet at least one of the 

CRA requirements we reviewed. (See figure 9.)42 We did not identify any 

statistical differences in the noncompliance rate among the three 

transition periods and nontransition periods combined.

 40During the course of our work, we initially identified 15 economically significant 

regulations published during the specified periods that were not submitted to us. We 

contacted the seven agencies that published these regulations. Following our contacts, 

agencies submitted 5 of these regulations between May and October 2017. However, as 

of November 13, 2017, 10 regulations had not been submitted to us. While 2 of these had 

been submitted to at least one House of Congress, CRA also requires submission to us. 

41See appendix II for more information concerning the noncompliance rate for the most 

active rulemaking agencies for economically significant regulations.

42For this estimate, our 95 percent confidence interval is from 11 percent to 20 percent.
Page 25 GAO-18-183 Federal Rulemaking

Figure 9: Final Significant Regulations Determined to be Noncompliant with the Congressional Review Act during Specified 

Transition and Nontransition Periods, 1996-2017

For significant regulations, we developed estimates for the following CRA 

deficiencies:

• Regulations submitted after the stated effective date: An estimated 15 

percent of significant regulations published during all periods reviewed 

were not submitted to Congress and us before the stated effective 

date as required.43 Significant regulations were generally nonmajor 

rules, which do not have a requirement to delay the effective date by 

60 days.44 There were no statistical differences among the three 

 43For this estimate, our 95 percent confidence interval is from 11 percent to 20 percent.

44Only one significant regulation we reviewed was submitted to us as a major rule and our 

analysis took that into account in determining whether that regulation was noncompliant 

with CRA. 
Page 26 GAO-18-183 Federal Rulemaking

transition periods and the nontransition periods regarding this 

deficiency.

• Regulations not submitted to us: An estimated 7 percent of significant 

regulations published during all periods reviewed had not been 

submitted to us as of November 17, 2017, with no statistical 

differences among the three transition periods and nontransition 

periods.45

Agencies’ noncompliance with CRA has the overall effect of making it 

more difficult for Congress to exercise its oversight role under CRA; 

however, the precise effects of noncompliance depend on the type of 

regulation and the specific deficiencies. CRA provides expedited 

procedures that make it easier to overturn a regulation compared to 

following the regular legislative process.46 For economically significant 

regulations, which are generally classified as major rules under CRA, 

failing to provide the required delay for congressional review means that 

Congress has a shorter amount of time to use these expedited 

procedures to disapprove the regulation before the agency potentially 

starts enforcement actions. Furthermore, in general, if a rule is not 

submitted to Congress as required by CRA, Congress cannot use these 

expedited procedures. Moreover, not submitting a rule to Congress can 

potentially create legal uncertainty for agencies and regulated parties 

because courts have differed on the impact of noncompliance with CRA 

on the enforceability of the regulation.47

OIRA staff noted that CRA states that agencies are responsible for 

complying with the act’s requirements, and E.O. 12866 states that 

agencies are responsible for adhering to applicable laws. However under 

E.O. 12866, OIRA is also responsible for oversight of agencies’

rulemaking, consistent with law, and reviews regulations before 

 45For this estimate, our 95 percent confidence interval is from 4 percent to 11 percent. We 

contacted the agencies that failed to submit regulations published during President 

Obama’s transition period. None of these agencies submitted the regulations following this 

contact. We plan to contact agencies about the significant regulations published during 

other periods and not submitted to us.

46When a joint resolution of disapproval meets certain criteria, it cannot be “filibustered” in 

the Senate, meaning that a simple majority can pass such a resolution in the Senate.

47Compare, e.g., U.S. v. Am. Elec. Power Serv. Corp., 218 F. Supp. 2d 931 (S.D. Ohio 

2002) (holding the CRA precludes judicial review of an agency’s failure to submit a 

rule); U.S. v. Reece, 956 F. Supp. 2d 736 (W.D. La. 2013) (holding that judicial review 

was available).
Page 27 GAO-18-183 Federal Rulemaking

publication, which provides it an opportunity to identify and help agencies 

avoid potential noncompliance.48 OIRA staff asserted that they already 

take steps to check agencies’ compliance with CRA.49 However, we found 

that OIRA completed its E.O. 12866 reviews for 110 of the 132

noncompliant economically significant regulations within 90 days of the 

stated effective date. OIRA staff noted that they cannot monitor every 

action agencies take following their review of draft final regulations, such 

as the specific date a regulation is published in the Federal Register or 

whether an agency submits a copy of the regulation to Congress or us. 

However, because economically significant regulations are generally 

classified as major rules under CRA, this indicates that OIRA frequently 

completes its review in close proximity to the start of the 60-day period 

intended for congressional review, and in such cases the regulation is at 

high risk of noncompliance with CRA.

This close proximity to the 60-day period provides an opportunity for 

OIRA to identify potentially noncompliant regulations before agencies 

publish them and work with agencies on actions that would avoid 

noncompliance. Our analysis identified such actions agencies could use 

to comply with CRA. For example, we found instances of agencies 

explaining to the public that CRA requires a 60-day review period for 

major rules and therefore identifying an effective date more than 2 

months after publication in the Federal Register. In other instances, 

agencies stated that the regulation would take effect 60 days after 

publication in the Federal Register, which ensures compliance with CRA 

provided that the regulation is submitted to Congress and us on or before 

the day it is published.50 In other cases, agencies stated they had “good 

cause,” to not delay the effective delay, such as a statutory or judicial 

deadline or an emergency situation.

 48Specifically, E.O. 12866 states that, “the Administrator of OIRA shall provide meaningful 

guidance and oversight so that each agency’s regulatory actions are consistent with 

applicable law, the President’s priorities, and the principles set forth in this Executive order 

and do not conflict with the policies or actions of another agency.”

49OIRA staff made this statement in February 2018 after reviewing our draft report. 

However, they did not provide supporting documentation and, thus, we were not able to 

verify this statement. 

50The Office of the Federal Register states that it will compute and insert the specific date 

if an agency indicates the regulation shall take effect 60 days after publication in the 

Federal Register. See, p. 3-8 of Office of the Federal Register, Document Drafting 

Handbook (Washington, D.C.: May 2017).
Page 28 GAO-18-183 Federal Rulemaking

Agencies anticipated that economically significant regulations published 

during transition periods were more likely to result in economic costs and 

benefits and generally less likely to result in “transfers” of income from 

taxpayers to program beneficiaries. To identify the types of economic 

effects that agencies anticipated, we placed the 527 economically 

significant regulations reviewed across all periods into one of four 

categories based on information agencies provided in the published 

regulation concerning the anticipated costs, benefits, or transfers resulting 

from a regulation:51

• Expected economic costs, benefits, or both: For 197 of the 527 

economically significant regulations (or 37 percent), agencies 

expected costs or benefits or both to result and made no mention of 

transfers. Our previous work has noted that regulations typically 

require a desired action or prohibit certain actions by regulated 

parties.52 Such requirements may impose costs on private-sector 

parties, such as businesses and individuals, and may also provide 

benefits to society as a whole.53 Examples we reviewed included EPA 

regulations limiting emissions from industrial facilities with the goal of 

improving air quality and Labor Department regulations intended to 

improve workplace safety.

• Transfers: For 184 of the 527 economically significant regulations (or 

35 percent), agencies expected transfers to result from the regulation 

and made no mention of either costs or benefits. Examples we 

reviewed included HHS regulations stating how much Medicare will 

reimburse Medicare providers and Department of Agriculture 

regulations providing disaster assistance to farmers. While these 

payments increase the incomes of Medicare providers and farmers, 

Circular A-4 directs agencies to avoid misclassifying these transfers 

as economic costs or benefits because they do not change aggregate 

social welfare.

 51We did not review the extent to which agencies assessed alternatives for economically 

significant regulations.

52GAO, Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could 

Strengthen Linkages to Performance Goals, GAO-14-268 (Washington, D.C.: Apr. 11, 

2014). 

53We recognize that certain regulations may also impose requirements on state, local, and 

tribal governments and may also impose administrative costs on federal agencies, but for 

simplicity we will use the terms–private sector, businesses, and individuals–as shorthand 

for referring to regulated parties.

Variations Existed 

between Transition 

and Nontransition 

Periods in Agencies’

Anticipated Types of 

Economic Effects for 

Economically 

Significant 

Regulations
Page 29 GAO-18-183 Federal Rulemaking

• Combination of economic costs, benefits, or transfers: For 108 of 

the 527 economically significant regulations (or 20 percent), agencies 

expected costs or benefits or both to occur and also expected 

transfers to occur. Examples we reviewed included regulations that 

expanded access to health insurance for tribal employees and 

established paid sick leave for federal contractors that were 

anticipated to result in both administrative costs and transfers.

• No economic analysis: The remaining 38 of the 527 economically 

significant regulations (or 7 percent) provided no economic analysis.54

Of these regulations, 22 were updates to migratory bird hunting 

regulations Interior published during Presidents Clinton’s 

Administration and President Bush’s first term. During the 2003-2004 

nontransition period of President Bush’s Administration, Interior began 

providing a brief summary of the economic effects anticipated to result 

from hunting these birds.

Comparing these reported effects between transition and nontransition 

periods, we found that agencies indicated that economically significant 

regulations published during transition periods were more likely to result 

in costs and benefits to society than those published during nontransition 

periods across all three administrations. (See figure 10.) In contrast, 

regulations involving only transfers became a smaller proportion of the 

economically significant regulations published during Presidents Bush’s 

and Obama’s transition periods. Regulations that involved various 

combinations of costs, benefits, and transfers became a larger proportion 

of regulations published during Presidents Bush and Obama’s transition 

periods and overall became a larger proportion of economically significant 

regulatory activity that occurred during President Obama’s transition 

period.

 54The percentages for these four categories do not add up to 100 percent due to 

rounding. 
Page 30 GAO-18-183 Federal Rulemaking

Figure 10: Number of Final Economically Significant Regulations with Anticipated Economic Costs, Benefits, and Transfers 

during Specified Transition and Nontransition Periods, 1996-2017

Note: Some percentages do not add up to 100 percent due to rounding.
Page 31 GAO-18-183 Federal Rulemaking

Executive guidance encourages agencies to quantify and monetize 

expected costs and benefits to help decision makers understand the 

consequences of regulatory approaches. E.O. 12866 states that for 

economically significant regulations agencies should analyze costs and 

benefits to the extent feasible, and Circular A-4 encourages agencies, to 

the extent possible, to provide monetized estimates of these costs and 

benefits. For economically significant regulations, we found that agencies 

were more likely to monetize anticipated costs and transfers compared to 

benefits and were more likely to monetize anticipated costs during 

Presidents Clinton and Bush’s transition periods. (See figures 11-13.) For 

economically significant regulations, we also did additional analysis of the 

extent to which agencies anticipated the benefits would justify the costs 

and the extent to which net costs or benefits were calculated. (See 

appendix II.)
Page 32 GAO-18-183 Federal Rulemaking

Figure 11: Extent to Which Agencies Monetized Anticipated Economic Costs Resulting from Final Economically Significant 

Regulations during Specified Transition and Nontransition Periods, 1996-2017
Page 33 GAO-18-183 Federal Rulemaking

Figure 12: Extent to Which Agencies Monetized Anticipated Economic Benefits Resulting from Final Economically Significant 

Regulations during Specified Transition and Nontransition Periods, 1996-2017
Page 34 GAO-18-183 Federal Rulemaking

Figure 13: Extent to Which Agencies Monetized Anticipated Transfers Resulting from Final Economically Significant 

Regulations during Specified Transition and Nontransition Periods, 1996-2017

In examining the extent to which agencies anticipated that costs, benefits, 

and transfers would result from significant regulations, we found that an 

estimated 57 percent across all periods reviewed provided information on 

the anticipated costs, benefits, transfers, or some combination of these, 

with no statistical differences among the three transition periods and the 

nontransition periods combined.55 An estimated 43 percent of significant 

regulations across all periods reviewed did not include any information on 

 55For this estimate, the 95 percent confidence interval was between 51 and 62 percent.
Page 35 GAO-18-183 Federal Rulemaking

the anticipated costs, benefits, transfers, or some combination of these, 

with no statistical differences among the three transition periods and the 

nontransition periods combined.56

Although we confirmed that agencies published a larger number of 

regulations during transition periods than during the same months in 

nontransition periods, the variety of other indicators we examined 

generally suggest that there were few significant differences—other than 

their numbers—when comparing regulations published during the three 

transitions to each other and to those published during nontransition 

periods. Among the few exceptions, economically significant regulations 

published during the transition periods were more likely to have provided 

advanced notice to the public and more likely to result in private sector 

costs and potential benefits to society.

However, agencies’ noncompliance with the requirements of CRA for 

economically significant regulations (major rules under CRA) grew worse 

over time. Under CRA, agencies must allow additional time for Congress 

to review these most impactful regulations before they take effect unless 

the agency claims good cause for not delaying the effective date. Our 

review did highlight a potential opportunity for OIRA to work with agencies 

to improve CRA compliance going forward. Specifically, OIRA staff have 

the unique opportunity to work with agencies before economically 

significant regulations and regulations deemed significant for other 

reasons are published in final form in the Federal Register. OIRA staff 

should use this opportunity to identify economically significant regulations 

whose planned effective dates appear at risk of not providing Congress 

with sufficient time to review the regulation.

To do this, our analysis points to a simple “rule of thumb” OIRA reviewers 

could use. If an agency is planning to make an economically significant 

regulation effective in less than 3 months from the time OIRA is 

completing its review, OIRA staff should discuss with agency officials 

strategies for ensuring compliance with CRA. These could include 

delaying the planned effective date, stating in the submission to the

Federal Register that the regulation will go into effect 60 days after 

 56For this estimate, the 95 percent confidence interval was between 38 and 49 percent. 

We did additional analyses of the extent to which agencies anticipated costs, benefits, or 

transfers would result from significant regulations during the three transition periods and 

nontransition periods combined, which are presented in appendix II. 

Conclusions
Page 36 GAO-18-183 Federal Rulemaking

publication and ensuring prompt submission to Congress and us, or 

discussing whether the agency has a reasonable basis to claim “good 

cause” for not delaying the effective date and ensuring that the use of 

“good cause” is clearly explained in the regulation. 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.

We are making the following recommendation to the Director of OMB:

• The Director of OMB should ensure that OIRA’s staff, as part of the 

regulatory review process, examine the planned timeframes for 

implementing economically significant regulations or major rules and 

identify regulations that appear at potential risk of not complying with 

the Congressional Review Act’s delay requirements and then work 

with the agencies to ensure compliance with these requirements 

(Recommendation 1).

We provided a draft of this report to the Director of OMB on January 18, 

2018. In oral comments received on February 22, 2018, staff from OIRA 

and the Office of General Counsel discussed the findings, conclusions, 

and recommendation. OMB staff did not agree or disagree with our 

recommendation. However, they identified some concerns regarding the 

recommendation to improve agencies’ compliance with CRA. They noted 

that: (1) CRA states that agencies are responsible for complying with the 

act’s delay and submission requirements; (2) agencies determine when 

their regulations will take effect and when they submit the regulations to 

Congress and us, neither of which OMB has direct control over; and (3) 

where OMB does exercise authority—the regulatory review process 

under E.O. 12866—OIRA staff already take steps to check agencies’

compliance with CRA, and they do not see what more they could do to 

improve agencies’ compliance with the act. The staff also provided 

technical comments that were incorporated as appropriate.

Regarding the first two concerns raised by OIRA staff, we believe our 

report sufficiently recognizes agencies’ responsibilities under CRA. 

Regarding the third concern, we disagree that OMB has done all that it 

can to improve compliance with CRA. As noted above, OMB staff 

asserted that they do take steps to check for CRA compliance, and these 

checks could provide a starting point for OMB to address our 

Recommendation for 

Executive Action

Agency Comments 

and Our Evaluation
Page 37 GAO-18-183 Federal Rulemaking

recommendation. However, our analysis raises questions about how 

effective these checks have been. OIRA completed its review for 110 of 

the 132 noncompliant economically significant regulations within 90 days 

of the stated effective date. This analysis points to a simple “rule of 

thumb” for OIRA reviewers to use. If a regulation has a planned effective 

date in less than 90 days, it is at high risk of noncompliance with CRA. 

Further, our report identifies three specific strategies OIRA staff could 

discuss with agency officials on how to comply with CRA. Thus, we 

believe that our report shows that OMB could do more to ensure CRA 

compliance and identifies specific ways OMB could help agencies 

accomplish this.

We are sending copies of this report to the Director of OMB as well as 

appropriate congressional committees and other interested parties. In 

addition, this report is available at no charge on the GAO website at 

http://www.gao.gov.

If you or your staff members have any questions about this report, please 

contact me at (202) 512-6806 or krauseh@gao.gov. Contact points for 

our Offices of Congressional Relations and Public Affairs may be found 

on the last page of this report. GAO staff who made key contributions to 

this report are listed in appendix III.

Heather Krause

Director, Strategic Issues
Page 38 GAO-18-183 Federal Rulemaking

List of Committees

The Honorable Ron Johnson

Chairman

The Honorable Claire McCaskill

Ranking Member

Committee on Homeland Security and Governmental Affairs

United States Senate

The Honorable Trey Gowdy

Chairman

The Honorable Elijah E. Cummings

Ranking Member

Committee on Oversight and Government Reform

House of Representatives
Appendix I: Objectives, Scope, and 

Methodology

Page 39 GAO-18-183 Federal Rulemaking

Section 5 of the Edward “Ted” Kaufman and Michael Leavitt Presidential 

Transitions Improvements Act of 2015 includes a provision for us to 

assess final significant regulatory actions promulgated by executive 

departments during specified presidential transition periods and to 

analyze and compare multiple characteristics of regulations issued during 

these transition periods to each other and to regulations issued during the 

same 120-day period (September 23 to January 20) in nontransition 

years since 1996.1 The transition periods identified in the act are those 

ending on January 20 in 2001, 2009, and 2017, which occurred at the end 

of the administrations of Presidents Clinton, Bush, and Obama.

For purposes of this review, executive agencies are cabinet departments 

and other agencies that answer directly to the President and exclude the 

independent regulatory agencies.2 The definition of what the mandate 

refers to as a “covered regulation” is the same as the definition of a final 

significant regulatory action under Executive Order (E.O.) 12866.3 Under 

E.O. 12866, the Office of Management and Budget’s (OMB) Office of 

Information and Regulatory Affairs (OIRA) reviews significant proposed 

and final regulatory actions from all federal agencies (other than 

independent regulatory agencies) before they are published in the 

Federal Register. The order defines significant regulatory actions as 

those that are likely to result in a regulation that may:

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 

(generally referred to as “economically significant” regulations);

2. Create a serious inconsistency or otherwise interfere with an action 

taken or planned by another agency;

 1

Pub. L. No. 114-136, § 5. 130 Stat. 301, 307–308 (2016).

2

“Independent regulatory agencies” are the boards and commissions identified as such in 

the Paperwork Reduction Act, such as the Securities and Exchange Commission. 44 

U.S.C. § 3502(5). 

3

Executive Orders 13563, 13771, and 13777 subsequently reaffirmed E.O. 12866. Exec. 

Order No. 12866, Regulatory Planning and Review, 58 Fed. Reg. 51,735 (Oct. 4, 1993); 

Exec. Order No. 13563, Improving Regulation and Regulatory Review, 76 Fed. Reg. 3821 

(Jan. 21, 2011); Exec. Order. No. 13771, Reducing Regulation and Controlling Regulatory 

Costs, 82 Fed. Reg. 9339 (Feb. 3, 2017); and Exec. Order No. 13777, Enforcing the 

Regulatory Reform Agenda, 82 Fed. Reg. 12,285 (Mar. 1, 2017).

Appendix I: Objectives, Scope, and 

Methodology
Appendix I: Objectives, Scope, and 

Methodology

Page 40 GAO-18-183 Federal Rulemaking

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.4

For each of the three transition periods, and among these transition 

periods and the same 120-day periods in the 18 nontransition periods,

our objectives were to assess the extent to which there were variations in:

1. The number of regulations and other indicators related to the scope 

and transparency of these regulations;

2. Agencies’ reported compliance with procedural requirements for 

promulgating the regulations; and

3. The anticipated economic effects agencies reported would result from 

the regulations.

In general, to address each of these objectives we reviewed the universe 

of all 527 final economically significant regulations published during the 

specified time periods and a generalizable stratified random sample of 

358 final significant regulations from the population of the 1,633 final 

significant regulations published during those same periods. For 

economically significant regulations, we can provide precise statistics on 

the extent of a finding, because we reviewed the universe of final 

economically significant regulations. For significant regulations, our 

findings are based on a sample designed to achieve a 7 percent margin 

of error and 95 percent level of confidence for each stratum in the 

population of all covered significant regulations published in each 

transition period and, collectively, all nontransition periods. Our findings 

for the sample are not generalizable to the individual agencies that 

published those regulations. We divided the significant regulations into 

four strata depending on when the regulation was published: 1) the 2000-

2001 transition period; 2) the 2008-2009 transition period; 3) the 2016-

2017 transition period; and 4) all the nontransition periods consolidated 

 4

For the purposes of this report, 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, i.e., those expected to have less than $100 million in economic effects but are 

deemed significant under the order’s other three definitions of significance). We will refer 

to the latter category as “significant regulations.” 
Appendix I: Objectives, Scope, and 

Methodology

Page 41 GAO-18-183 Federal Rulemaking

into one stratum.5 We made two modifications to the data for each 

stratum before we selected our sample: 1) We added to the sampling 

frames additional significant regulations that we had become aware of 

during our review of economically significant regulations; and 2) we 

reviewed the sampling frames and filtered out duplicate entries. Because 

we followed a probability procedure based on random selections, our 

sample is only one of a large number of samples that we might have 

drawn. Since each sample could have provided different estimates, we 

express our confidence in the precision of our particular sample’s results 

as a 95 percent confidence interval (for example, plus or minus 7 

percentage points). This is the interval that would contain the actual 

population value for 95 percent of the samples we could have drawn. 

Table 3 summarizes the population and sample size by stratum for 

significant regulations.

Table 3: Disposition of Sample of Significant Regulations Published during Transition and Nontransition Periods, 1996 to 

2017

Sample

Regulation stratum Population Total selected In scope Out of scopea

President Clinton’s Transition 

Period

107 70 68 2

President Bush’s Transition 

Period

135 80 78 2

President Obama’s Transition 

Period

117 74 69 5

Nontransition Periods 1274 170 143 27

Total 1633 394 358 36

Source: GAO analysis of data from Reginfo.gov and published regulations in the Federal Register. | GAO-18-183

a

In the course of our review, we identified regulations that were incorrectly identified by Reginfo.gov 

as significant regulations published during the specified time periods. We discarded these rules from 

our sample.

We primarily relied on the Reginfo.gov database on OMB’s regulatory 

reviews under E.O. 12866 to compile lists of final economically significant 

and significant regulations published during each of the transition and 

 5

In drawing the sample for the 2016-2017 stratum, we used a different data source than 

the three other strata. For the three other strata, we used data from Reginfo.gov contained 

in Extensible Markup Language (XML) files to draw the samples. For the 2016-2017 

stratum, we used the search results from Reginfo.gov as the sampling frame because the 

XML data appeared incomplete. Nevertheless, we believe that the four strata are 

comparable because we observed no unusual patterns among the search results.
Appendix I: Objectives, Scope, and 

Methodology

Page 42 GAO-18-183 Federal Rulemaking

nontransition periods.6 As described in more detail below, we refined and 

supplemented the lists from the Reginfo.gov database with information 

from our database of rules submitted to us under the Congressional 

Review Act (CRA), and the Government Printing Office’s Federal Digital 

System database on the Federal Register.7 To test the reliability of these 

databases, we reviewed relevant documentation, interviewed 

knowledgeable agency officials, looked for missing data and outliers (for 

example, by identifying missing records or those included in error), traced 

a sample of entries to source documents, and conducted additional 

checks. We concluded that the data were sufficiently reliable for our 

purposes.

Further for all objectives and for both economically significant and 

significant regulations, our primary source was the text of the published 

regulation. However, as described below, we did sometimes supplement 

that information with information from other publicly available sources. We 

downloaded copies of published regulations from the website maintained 

by the Government Printing Office, which securely controls content to 

ensure the integrity and authenticity of the Federal Register. We used a 

data collection instrument to collect standardized information about 

individual regulations as described below. We did not evaluate the 

agencies’ decisions regarding procedural requirements or their 

determinations regarding the effects of their rules. Instead, consistent with 

our practice in preparing major rule reports to Congress under CRA and 

prior reports on federal rulemaking, we are providing information about 

what the agencies published in the Federal Register.

To assess the number of regulations and other variations related to the 

scope and transparency of these regulations, we first reviewed and 

refined our lists of economically significant and significant regulations 

published during each of the transition and nontransition periods. For 

 6

See https://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp. OMB and the Regulatory 

Information Service Center (RISC) share responsibilities for the Reginfo.gov database. 

RISC, within the General Services Administration, facilitates the development of, and 

access to, information about federal regulatory and deregulatory activities. In cooperation 

with OMB’s OIRA, it established the Reginfo.gov site to assist users who want to find 

information about government regulation.

7

CRA generally requires agencies to submit rules to both Houses of Congress and the 

U.S. Comptroller General before the rules can become effective. 5 U.S.C. § 801(a)(1)(A). 

The Federal Register is a legal newspaper published every business day by the National 

Archives and Records Administration containing legal documents and notices pertaining to 

federal agencies, including rules and regulations.
Appendix I: Objectives, Scope, and 

Methodology

Page 43 GAO-18-183 Federal Rulemaking

economically significant regulations, we compared the initial lists 

compiled from Reginfo.gov against lists of major rules agencies had 

submitted to us under CRA to look for potential omissions.8 We then 

reviewed each of the published regulations to identify explanations 

agencies may have provided of a selected regulation’s classification as 

economically significant under E.O. 12866 to tally total numbers of 

economically significant regulations published during each of the time 

periods and the agencies publishing them.9 To identify economically 

significant regulations published annually, we looked for indications in the 

title or summary of the regulation and confirmed that these regulations 

appeared in multiple time periods reviewed.10 For significant regulations, 

we obtained data from Reginfo.gov concerning the number of regulations 

reportedly published and the agencies reported to have published them. 

We also reviewed the published regulations for explanations of the 

regulations’ classification under E.O. 12866.11 Our sample of significant 

regulations was not designed to make estimates for individual agencies, 

so we used data from Reginfo.gov instead. For both economically 

significant and significant final regulations, we compiled information on 

the rulemaking procedures used by agencies to determine whether the 

agencies had published a prior notice of proposed rulemaking (NPRM). 

 8

The definition of economically significant under E.O. 12866 is largely the same as the 

definition of major rules under the Congressional Review Act. Our database is accessible 

at http://www.gao.gov/legal/congressional-review-act/overview.

9

Our analysis recognized that agencies used varying terminology to indicate a regulation 

was economically significant or significant. If the regulation was silent or unclear on 

whether it was economically significant, we left it in the population on the rationale that it 

had been identified by Reginfo.gov as economically significant or had been submitted to 

us as a major rule. We removed from the economically significant population regulations 

for which the agency explicitly stated they were not economically significant and either 

confirmed that they were in the sampling frame for significant regulations or removed them 

if they were not significant. During our review of the sample of significant regulations, it 

came to our attention that two regulations identified by Reginfo.gov as significant were in 

fact economically significant according to the published regulation, and we therefore 

added them to the economically significant population.

10While the migratory bird hunting regulations are updated throughout the calendar year 

for different hunting seasons, for clarity we classified them as annual updates because we 

examined the iterations that pertained to the late season.

11Our analysis recognized that agencies used varying terminology to indicate a regulation 

was significant. If the regulation was silent or unclear on whether it was significant, we left 

it in the sample on the rationale that it had been identified by Reginfo.gov as significant 

and nothing in the rule itself contradicted that classification. We removed regulations for 

which the agency explicitly stated they were not significant. If the agency stated it was 

economically significant, we confirmed we had reviewed it as part of our analysis of 

economically significant regulations or, in two instances, added them to that population.
Appendix I: Objectives, Scope, and 

Methodology

Page 44 GAO-18-183 Federal Rulemaking

We did this by looking for discussion of a proposed regulation in the 

published final regulation.12 As necessary, we supplemented that review 

with information from our major rule reports, if available, and data from 

Reginfo.gov concerning the rulemaking history. To describe the extent to 

which regulations had been advertised in the previous spring’s Unified 

Agenda, we searched for the regulation’s identification number(s) in the 

online database for the Unified Agenda.13

To assess the extent to which there were variations in agencies’ reported

compliance with procedural requirements for promulgating the 

regulations, we reviewed the published text of the regulations and, for 

regulations that were also major rules, the major rule reports that we 

prepared for Congress under CRA.14 We reviewed agencies’ reported 

compliance with procedural requirements for promulgating regulations 

under five statutes—CRA, the Regulatory Flexibility Act (RFA), the 

Paperwork Reduction Act (PRA), the Unfunded Mandates Reform Act of 

1995 (UMRA), and the Small Business Regulatory Enforcement Fairness 

Act (SBREFA)—including whether and, if so, how the agency addressed 

the requirement in the published regulation. To determine whether the 

Environmental Protection Agency and the Occupational Safety and 

Health Administration held the panels they were required to hold under 

SBREFA, we also reviewed the information on the Small Business 

Administration’s website summarizing these panels.15

 12As we had previously reported in December 2012, agencies sometimes published final 

regulations for which parts of the regulations had a prior NPRM and other parts did not. 

(See GAO, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to 

Public Comments, GAO-13-21 (Washington, D.C.: Dec. 20, 2012).) For the purposes of 

this report, we classified such regulations as having a prior NPRM. During this review, we 

identified 26 economically significant regulations for which agencies published NPRMs on 

portions of the regulation but claimed good cause to not publish an NPRM for other 

portions.

13If the Reginfo.gov summary page stated that the identification number was appearing for 

the first time in the Unified Agenda, we recorded that the regulation had not appeared in 

the Unified Agenda. For joint regulations involving multiple agencies or regulations with 

multiple identification numbers, we documented if any of the identification numbers had 

appeared in the relevant agenda.

14CRA requires our reports on major rules that federal agencies make to include 

summaries of the procedural steps taken by the agencies.

15Available from

https://www.sba.gov/category/advocacy-navigation-structure/regulatory-policy/regulatory-fl

exibility-act/sbrefa.
Appendix I: Objectives, Scope, and 

Methodology

Page 45 GAO-18-183 Federal Rulemaking

We took multiple steps to identify noncompliance with CRA. We first 

determined whether every regulation had been submitted to us, and for 

regulations that had been submitted, we recorded the date we received 

it.16 We used the date a regulation had been submitted to us when 

assessing whether a regulation’s stated effective date was consistent with 

CRA requirements. We also reviewed whether agencies had claimed 

“good cause” for not delaying the effective date.17 For regulations not 

submitted to us or those regulations submitted to us after they should 

have been submitted, we conducted additional checks of the 

Congressional Record to see if we could find evidence that the agency 

had provided a copy of the regulation to either of the Houses of Congress 

in time for the regulation’s stated effective date to be consistent with CRA 

requirements.18 If we could find evidence that any of these requirements 

had been met, we removed the regulation from further consideration as 

potentially noncompliant. As such, our methodology was designed to 

identify instances of noncompliance. Our methodology does not allow us 

to conclude that the remaining regulations were fully compliant. In 

addition, it was beyond the scope of our review to evaluate the 

appropriateness of agencies claiming “good cause” for not providing the 

required delay.

To assess the extent to which there were variations in agencies’ reported 

anticipated economic effects resulting from the regulations, we reviewed 

the published regulations to see whether they contained a section clearly 

identified as economic analysis or discussion of the analytical 

 16If an agency asserted that the regulation was exempt from CRA because it met one of 

the exceptions to the definition of “rule” in CRA, we did not identify the regulation as 

noncompliant irrespective of whether it was submitted to us and other data we collected 

related to CRA.

17Agencies can claim “good cause” to waive requirements to publish proposed rules and 

“good cause” to waive the delay in effective date requirements. 5 U.S.C. §§ 553(b)(3)(B), 

(d)(3); 808(2). Only claims of “good cause” to waive the delay in effective date 

requirements are relevant to CRA noncompliance. We also recognized that agencies used 

varying terminology for claiming “good cause” for not delaying the effective date and if 

there was unclear language that could potentially be interpreted as doing this, we 

removed those regulations from further consideration as noncompliant, unless the agency 

failed to submit the regulation to us. Further, our analysis also recognized that certain 

regulatory activity, such as the migratory bird hunting regulations are exempt from CRA’s 

requirements to delay the effective date. 5 U.S.C. § 808(1) 

18The Congressional Record summarizes the proceedings of Congress and includes, 

among other things, communications from executive agencies.
Appendix I: Objectives, Scope, and 

Methodology

Page 46 GAO-18-183 Federal Rulemaking

requirements concerning E.O. 12866.19 We used selected elements from 

OMB Circular A-4 to review the analyses included in the published 

regulations to identify expected costs, benefits, or transfers, and whether 

that information was provided in monetary, quantitative, or qualitative 

terms. To help identify regulations that involved transfers, we also 

reviewed the annual reports OMB prepares for Congress on the costs 

and benefits of federal regulations.20 OMB includes in these reports a list 

of transfer regulations and has used a consistent definition over time.21

We also looked for indication in the published regulation’s economic 

analysis that the regulation involved such topics as transfers, or federal 

payments to certain groups in society (for example, Medicare recipients), 

subsidies for certain economic activities, or user fees or royalties people 

pay the government to name several common examples. To determine 

the extent to which agencies discussed whether they expected that the 

benefits would justify the costs, we looked for “bottom line” or other 

concluding statements agencies may have provided in their economic 

analysis.22 We also looked, when relevant, for a discussion of what the 

net benefits or costs were expected to be.23 For transfer regulations that 

were economically significant, we examined the extent to which agencies 

quantified or monetized the expected transfers. If available, we used 

 19If the regulation contained no section clearly identified as economic analysis, we looked 

to see if the sections addressing other analytical requirements contained any explanation 

of anticipated costs and benefits. Further, if an agency clearly directed the public to a 

specific document—for example, a regulatory impact analysis available on regulations.gov 

or the economic analysis the agency had presented in an NPRM—we reviewed those. 

However, we did not review economic analyses that had been purportedly done, but were 

not readily accessible to the public at the time of our review. 

20These reports are available at 

https://obamawhitehouse.archives.gov/omb/inforeg_regpol_reports_congress/. 

21At the time of our review, OMB had not finalized its reports on regulatory activity beyond 

2015. The 2016 report on regulatory activity in fiscal year 2015 was in draft form. Thus, we 

were not able to consult OMB’s reports concerning the 2016-2017 covered period and for 

only part of the 2015-2016 covered period. However, we believe the data on transfers are 

comparable for the reasons described above. 

22We only did this analysis for the subset of regulations that discussed both costs and

benefits. Our analysis recognized that agencies used varying terminology and did not 

always use the precise language from E.O. 12866 that they had made a reasoned 

determination that benefits justify costs. Our analysis also recognized that some agencies 

had calculated net benefits or net costs and if an agency provided this information we also 

recognized that the agency had addressed the requirement under E.O. 12866 to 

determine whether benefits justify costs. 

23We conducted this review for the subset of regulations that monetized both costs and 

benefits.
Appendix I: Objectives, Scope, and 

Methodology

Page 47 GAO-18-183 Federal Rulemaking

accounting statements agencies may have prepared summarizing the 

anticipated economic effects to help collect all of this information. We did 

not assess whether the agencies’ determinations regarding the benefits 

and costs were reasonable. In addition, we did not assess whether the 

agencies analyzed regulatory alternatives and uncertainty.

We conducted this performance audit from May 2016 to March 2018 in 

accordance with generally accepted government 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.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 48 GAO-18-183 Federal Rulemaking

The figures and tables in this appendix provide more detailed information 

on the results of additional analyses we completed for this report related 

to each of our three objectives. For economically significant regulations, 

we provide precise statistics on the extent of a finding, because we 

reviewed the universe. For significant regulations, our findings are based 

on a sample and include the upper and lower bounds of confidence 

intervals for estimated values.

In this section, we provide additional information from our analyses of:

• the extent to which economically significant regulations were 

published before or after the presidential elections in 2000, 2008, and 

2016;

• the most active rulemaking agencies for economically significant and 

significant regulations among the three administrations’ transition and 

nontransition periods;

• the number of economically significant regulations for which agencies 

reported they were under a statutory or judicial deadline to promulgate 

the regulation; and

• the median length, in days, of Office of Information and Regulatory 

Affairs (OIRA) regulatory reviews under Executive Order (E.O.) 12866 

for draft final economically significant and significant regulations 

during transition and nontransition periods.

We reviewed the extent to which economically significant regulations 

were published before or after the presidential elections in 2000, 2008, 

and 2016 and found that Presidents Clinton and Obama’s administrations 

increased their rate of rulemaking following the election, while President 

Bush’s administration decreased its rate of rulemaking. (See figure 14.)

Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Analyses of Indicators 

Related to the Numbers, 

Scope, and Transparency 

of Regulations
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 49 GAO-18-183 Federal Rulemaking

Figure 14: Rate of Final Economically Significant Regulatory Activity Occurring Before and After the 2000, 2008, and 2016 

Elections Preceding Presidential Transitions

Note: We reviewed the date on which economically significant regulations were published. We 

divided regulations into two smaller categories: Those published between September 23 and when 

the election occurred or would have occurred (federal elections only take place in even-numbered 

years) and those published between the election and January 20. We then took the total number of 

economically significant regulations published during each of these smaller periods and divided it by 

the number of days to calculate the rate agencies were publishing regulations.

We identified the most active rulemaking agencies for economically 

significant regulations among the three administrations’ transition and 

nontransition periods and did the same for significant regulations. (See 

tables 4-9.)
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 50 GAO-18-183 Federal Rulemaking

Table 4: Agencies Publishing the Largest Number of Final Economically Significant Regulations during President Clinton’s 

Administration, 1996-2001

Transition Period

(1 120-day period spanning 

September 23, 2000 to January 20, 2001)

Nontransition Periods

(4 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Health and Human 

Services

12 27% Health and Human 

Services 

21 30%

Agriculture 10 22% Interior 13 18%

Labor 6 13% Environmental 

Protection Agency

11 15%

Environmental 

Protection Agency

6 13% Agriculture 9 13%

Interior 5 11% Labor 4 6%

Other Agencies 6 13% Other Agencies 13 18%

Total 45 100% Total 71 100%

Source: GAO analysis of published regulations. | GAO-18-183

Table 5: Agencies Publishing the Largest Number of Final Economically Significant Regulations during President Bush’s 

Administration, 2001-2009

Transition Period

(1 120-day period spanning 

September 23, 2008 to January 20, 2009)

Nontransition Periods

(7 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Health and Human 

Services

17 30% Health and Human 

Services

51 38%

Transportation 7 13% Interior 14 10%

Interior 6 11% Agriculture 14 10%

Jointa 5 9% Transportation 10 7%

Environmental 

Protection Agency

4 7% Environmental 

Protection Agency

8 6%

Agriculture 4 7%

Other Agencies 13 23% Other Agencies 39 29%

Total 56 100% Total 136 100%

Source: GAO analysis of published regulations. | GAO-18-183

a

Jojnt regulations are published by more than one agency.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 51 GAO-18-183 Federal Rulemaking

Table 6: Agencies Publishing the Largest Number of Final Economically Significant Regulations during President Obama’s 

Administration, 2009-2017 

Transition Period

(1 120-day period spanning 

September 23, 2016 to January 20, 2017)

Nontransition Periods

(7 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Health and Human 

Services

17 31% Health and Human 

Services

59 36%

Homeland Security 4 7% Interior 17 10%

Energy 4 7% Education 13 8%

Transportation 4 7% Environmental 

Protection Agency

12 7%

Environmental 

Protection Agency

4 7% Agriculture 11 7%

Agriculture 4 7%

Other Agencies 18 33% Other Agencies 52 32%

Total 55 100% Total 164 100%

Source: GAO analysis of published regulations. | GAO-18-183
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 52 GAO-18-183 Federal Rulemaking

Table 7: Agencies Publishing the Largest Number of Final Significant Regulations during President Clinton’s Administration, 

1996-2001

Transition Period

(1 120-day period spanning 

September 23, 2000 to January 20, 2001)

Nontransition Periods

(4 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Agriculture 15 14% Health and Human 

Services

43 14%

Health and Human 

Services

12 11% Agriculture 35 11%

Labor 12 11% Environmental 

Protection Agency

25 8%

Interior 8 7% Office of Personnel 

Management 

22 7%

Environmental 

Protection Agency

7 7% Transportation 20 6%

Office of Personnel 

Management

7 7%

Commerce 7 7%

Other Agencies 39 36% Other Agencies 163 53%

Total 107 100% Total 308 100%

Source: GAO analysis of data from Reginfo.gov on the number of draft significant regulations submitted to the Office of Information and Regulatory Affairs for review. | GAO-18-183
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 53 GAO-18-183 Federal Rulemaking

Table 8: Agencies Publishing the Largest Number of Final Significant Regulations during President Bush’s Administration, 

2001-2009

Transition Period

(1 120-day period spanning 

September 23, 2008 to January 20, 2009)

Nontransition Periods

(7 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Health and Human 

Services

19 14% Health and Human 

Services

67 11%

Agriculture 14 10% Environmental 

Protection Agency

55 9%

Office of Personnel 

Management

13 10% Office of Personnel 

Management

43 7%

Environmental 

Protection Agency

11 8% Agriculture 40 7%

Homeland Security 9 7% Veterans Affairs 39 7%

Other Agencies 69 51% Other Agencies 343 58%

Total 135 100% Total 587 100%

Source: GAO analysis of data from Reginfo.gov on the number of draft significant regulations submitted to the Office of Information and Regulatory Affairs for review. | GAO-18-183

Table 9: Agencies Publishing the Largest Number of Final Significant Regulations during President Obama’s Administration, 

2009-2017

Transition Period

(1 120-day period spanning 

September 23, 2016 to January 20, 2017)

Nontransition Periods

(7 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations

Percentage of 

Regulations Agency

Number of 

Regulations

Percentage of 

Regulations

Environmental 

Protection Agency

14 12% Environmental 

Protection Agency

42 11%

Health and Human 

Services

8 7% Health and Human 

Services

28 7%

Commerce 8 7% Transportation 26 7%

Transportation 7 6% Agriculture 25 7%

Office of Personnel 

Management

6 5% Commerce 23 6%

Other Agencies 74 63% Other Agencies 235 62%

Total 117 100% Total 379 100%

Source: GAO analysis of data from Reginfo.gov on the number of draft significant regulations submitted to the Office of Information and Regulatory Affairs for review. | GAO-18-183
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 54 GAO-18-183 Federal Rulemaking

Agencies can indicate on Reginfo.gov whether they are required by a 

statutory or judicial deadline to promulgate a regulation. We did additional 

analysis for economically significant regulations and found agencies were 

less likely to indicate they were under such a deadline during the three 

administrations’ transition periods compared to nontransition periods.1

Under E.O. 12866, agencies are expected to submit regulations deemed 

significant to OIRA for review. Nearly all regulations we reviewed had 

been reviewed by OIRA. For a small number of economically significant 

regulations (13 across all periods or approximately 2 percent of the 

economically significant population), we could not find evidence on 

Reginfo.gov that OIRA reviewed the regulation. However, the absence of 

evidence on Reginfo.gov does not necessarily mean that OIRA did not 

review those regulations and may instead indicate that the review dates 

were not entered into Reginfo.gov. Our review found that the median 

length of OIRA’s review increased for economically significant regulations 

during each transition. (See figure 15.) For significant regulations, there 

were no statistical differences among the three transition periods and 

compared to nontransition periods combined. (See figure 16.)

 1

The specific data were 33 percent during President Clinton’s transition period compared 

to 37 percent during nontransition periods; 34 percent during President Bush’s transition 

period compared to 46 percent during nontransition periods, and 31 percent during 

President Obama’s transition period compared to 49 percent during nontransition periods. 
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 55 GAO-18-183 Federal Rulemaking

Figure 15: Median Length of OIRA Review (in Days) of Draft Final Economically 

Significant Regulations Published during Specified Transition and Nontransition 

Periods, 1996-2017

Note: This excludes 13 economically significant regulations across all periods for which we could not 

find data concerning OIRA’s review.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 56 GAO-18-183 Federal Rulemaking

Figure 16: Median Length of OIRA Review (in Days) of Draft Final Significant Regulations Published during Specified 

Transition and Nontransition Periods, 1996-2017

In this section, we provide additional information from our analyses of:

• agencies’ determinations regarding their regulations under the 

Regulatory Flexibility Act (RFA);

• agencies’ determinations regarding their regulations under the 

Paperwork Reduction Act (PRA);

• agencies’ determinations regarding their regulations under the 

Unfunded Mandates Reform Act of 1995 (UMRA); and

• Congressional Review Act (CRA) noncompliance rates for the 

agencies publishing the largest number of regulations.

We reviewed agencies’ discussions of three procedural requirements–

RFA, PRA, and UMRA–for economically significant regulations. (Figures

17-19 summarize the determinations agencies reached.)

Analyses of Indicators 

Related to Agencies’

Reported Compliance with 

Selected Procedural

Requirements for 

Promulgating Regulations
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 57 GAO-18-183 Federal Rulemaking

Figure 17: Agency Determinations under the Regulatory Flexibility Act Regarding the Effect of Final Economically Significant 

Regulations on Small Entities during Specified Transition and Nontransition Periods, 1996-2017

Note: Some percentages do not add up to 100 percent due to rounding.

a “Other” includes regulations that we could not classify into one of the other categories because the 

agency’s discussion of RFA was unclear.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 58 GAO-18-183 Federal Rulemaking

Figure 18: Agency Determinations under the Paperwork Reduction Act Regarding the Effect of Final Economically Significant 

Regulations on Information Collection Requirements during Specified Transition and Nontransition Periods, 1996-2017

Note: Some percentages do not add up to 100 percent due to rounding.

a ”Other” includes regulations that we could not classify into one of the other categories because the 

agency’s discussion of PRA was unclear. This category also includes regulations for which the 

agency modified information collection requirements, but determined that those changes would result 

in decreased regulatory burden.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 59 GAO-18-183 Federal Rulemaking

Figure 19: Agency Determinations under the Unfunded Mandates Reform Act of 1995 Regarding the Effect of Final 

Economically Significant Regulations on Unfunded Mandates during Specified Transition and Nontransition Periods, 1996-

2017

Note: Some percentages do not add up to 100 percent due to rounding.

a ”Other” includes regulations that we could not classify into one of the other categories because the 

agency’s discussion of UMRA was unclear.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 60 GAO-18-183 Federal Rulemaking

We reviewed agencies’ discussions of three procedural requirements–

RFA, PRA, and UMRA–for significant regulations. Figures 20-22 

summarize the determinations agencies reached. We found the following 

statistical differences in comparing the determinations agencies reached 

for significant regulations:

• RFA: There were no statistical differences among the three transition 

periods and nontransition periods in the determination that regulations 

might have a significant economic impact on a substantial number of 

small entities. Regulations published during President Clinton’s 

transition period were less likely than regulations published during 

President Bush’s transition period and nontransition periods to 

determine that the regulation would not have a significant economic 

impact on a substantial number of small entities. There were no 

statistical differences between Presidents Clinton’s and Obama’s 

transition periods for this determination under RFA. We also found 

statistical differences in the remaining two categories–regulations not 

subject to RFA and those not discussing RFA.2

• PRA: Significant regulations published during Presidents Obama’s 

and Clinton’s transition periods more frequently contained information 

collection requirements covered by PRA compared to nontransition 

periods. In addition, significant regulations published during President 

Clinton’s transition period more frequently contained information 

collections requirements compared to President Bush’s transition 

period. There were no other statistical differences in significant 

regulations containing information collection requirements. For the 

other categories, there were no statistical differences, except that 

significant regulations published during nontransition periods were 

less likely to discuss PRA than those published during President 

Obama’s transition period.

• UMRA: There were no statistical differences among the transition and 

nontransition periods in potential federal mandates covered by UMRA.

 2

For regulations not subject to RFA, the one statistical difference was that regulations 

published during President Obama’s transition period were more likely to assert this 

determination than regulations published during President Clinton’s transition period.

Agencies were less likely during President Clinton’s transition period to discuss RFA than 

during the two other transition periods and nontransition periods.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 61 GAO-18-183 Federal Rulemaking

Figure 20: Agency Determinations under the Regulatory Flexibility Act Regarding the Effect of Final Significant Regulations 

on Small Entities during Specified Transition and Nontransition Periods, 1996-2017
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 62 GAO-18-183 Federal Rulemaking

Figure 21: Agency Determinations under the Paperwork Reduction Act Regarding the Effect of Final Significant Regulations 

on Information Collection Requirements during Specified Transition and Nontransition Periods, 1996-2017

a ”Other” includes regulations that we could not classify into one of the other categories because the 

agency’s discussion of PRA was unclear.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 63 GAO-18-183 Federal Rulemaking

Figure 22: Agency Determinations under the Unfunded Mandates Reform Act of 1995 Regarding the Effect of Significant Final 

Regulations on Unfunded Mandates during Specified Transition and Nontransition Periods, 1996-2017
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 64 GAO-18-183 Federal Rulemaking

We examined the CRA noncompliance rates for the agencies publishing 

the largest number of economically significant regulations. (See table 10).

Table 10: Congressional Review Act Noncompliance Rates among the Most Active Regulatory Agencies for Final 

Economically Significant Regulations Published during Specified Transition and Nontransition Periods, 1996-2017 

Transition Periods

(3 120-day periods spanning September 23 to 

January 20 of 2000-2001, 2008-2009, and 2016-2017)

Nontransition Periods

(18 120-day periods spanning 

September 23 to January 20)

Agency

Number of 

Regulations 

Published

Number of 

Noncompliant 

Regulations

Noncompliance 

Rate Agency

Number of 

Regulations 

Published

Number of 

Noncompliant 

Regulations

Noncompliance 

Rate

Transportation 11 6 55% Transportation 21 9 43%

Health and 

Human 

Services

46 19 41% Health and 

Human 

Services

131 46 35%

Governmentwide Rate156 42 27% Governmentwide Rate371 90 24%

Agriculture 18 4 22% Agriculture 34 5 15%

Labor 11 2 18% Environmental 

Protection 

Agency

31 2 6%

Interior 12 1 8% Interior 44 0 0%

Environmental 

Protection 

Agency

14 0 0%

Source: GAO analysis of published regulations, GAO major rule reports, and the Congressional Record. | GAO-18-183

In this section, we provide additional information from our analyses of the 

extent to which:

• agencies indicated benefits justified costs for economically significant 

final regulations;

• agencies estimated net costs or benefits for economically significant 

final regulations; and

• agencies anticipated costs, benefits, or transfers resulting from 

significant regulations.

We examined additional indicators related to the economic analyses that 

E.O. 12866 and Circular A-4 encourage agencies to conduct when 

promulgating regulations. E.O. 12866 states that an agency should 

propose or adopt a regulation only upon a reasoned determination that 

the benefits of the intended regulation justify its costs. We examined the 

Analyses of Indicators 

Related to the Anticipated 

Economic Effects 

Agencies Reported would 

Result from the 

Regulations
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 65 GAO-18-183 Federal Rulemaking

extent to which agencies indicated that the anticipated benefits from 

economically significant regulations would justify their costs and found 

that agencies during Presidents Clinton’s and Obama’s transition periods 

were more likely to indicate that benefits justified costs compared to these 

administrations’ nontransition periods. (See figure 23.) During President 

Bush’s transition period, agencies were less likely to indicate that the 

anticipated benefits of the regulation would justify its anticipated costs. 

We did not extend this analysis to significant regulations because the 

examples were too limited to provide statistically reliable estimates for the 

three transition periods and nontransition periods combined.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 66 GAO-18-183 Federal Rulemaking

Figure 23: Extent to Which Agencies Indicated Benefits Justified Costs for a Subset of Final Economically Significant 

Regulations Published during Specified Transition and Nontransition Periods, 1996-2017

Notes: This analysis was only applicable to the subset of 236 economically significant regulations that 

discussed both costs and benefits. We excluded 18 of these regulations for which agencies had 

made unclear statements.

Some percentages do not add up to 100 percent due to rounding.

Monetizing both costs and benefits potentially allows an agency to 

calculate the net costs or benefits of a regulation and thus estimate how 

much better or worse off society will be as a result of the chosen 

regulatory approach. We found that agencies during Presidents Bush’s 

and Obama’s administrations, during both transition and nontransition 

periods, were more likely to calculate net costs or benefits than agencies 

during President Clinton’s transition and nontransition periods. (See figure 
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 67 GAO-18-183 Federal Rulemaking

24.) We did not extend this analysis to significant regulations because the 

examples were too limited to provide statistically reliable estimates for the 

three transition periods and nontransition periods combined.

Figure 24: Extent to Which Agencies Estimated Net Costs or Benefits for a Subset of Final Economically Significant 

Regulations Published during Specified Transition and Nontransition Periods, 1996-2017

Note: This analysis was only applicable to the subset of 113 economically significant regulations that 

monetized both costs and benefits. We excluded 17 of these regulations for which agencies had 

made unclear statements.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 68 GAO-18-183 Federal Rulemaking

For significant regulations that did identify anticipated costs, benefits, or 

transfers, we found the following statistical differences in comparing the 

three transition periods and nontransition periods combined as explained 

below and in figure 25:

• Economic Costs or Benefits or Both: For regulations falling into this 

category, the only statistical difference we found was that agencies 

were more likely during President Clinton’s transition period to identify 

anticipated economic costs or benefits or both compared to President 

Bush’s transition period.

• Transfers: For regulations falling into this category, the only statistical 

difference we found was that agencies were less likely during 

President Obama’s transition period to identify anticipated transfers 

compared to President Bush’s transition period and all three 

administrations’ nontransition periods combined.

• Both economic costs or benefits and transfers: For regulations 

falling into this category, the only statistical difference we found was 

that agencies were less likely during President Clinton’s transition 

period to indicate this compared to President Bush’s transition period.

• No economic analysis: An estimated 43 percent of significant 

regulations across all periods reviewed contained no economic 

analysis and there were no statistical differences among the three 

transition periods reviewed and the nontransition periods combined.
Appendix II: Additional GAO Analysis of Final 

Regulations Published During Specified 

Periods, 1996-2017

Page 69 GAO-18-183 Federal Rulemaking

Figure 25: Estimated Percentage of Final Significant Regulations with Anticipated Economic Costs, Benefits, and Transfers 

during Specified Transition and Nontransition Periods, 1996-2017
Appendix III: GAO Contact and Staff 

Acknowledgments

Page 70 GAO-18-183 Federal Rulemaking

Heather Krause, (202) 512-6806 or krauseh@gao.gov

In addition to the individual named above, Tim Bober (Assistant Director), 

Michael O’Neill (Analyst in Charge), Carl Barden, Tim Guinane, Krista 

Loose, Ned Malone, Alexander Ray, Cynthia Saunders, Christie Stassel, 

and Andrew J. Stephens made key contributions to this report. Donna 

Miller, John Hussey, Steven Flint, and Rob Letzler also contributed.

Appendix III: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgments

(100861)
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