Reexamining Regulations: Opportunities Exist to Improve Effectiveness and Transparency of Retrospective Reviews
Published: 2007-07-16T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Congress and presidents require agencies to review existing regulations to determine whether they should be retained, amended, or rescinded, among other things. GAO was asked to report the following for agency reviews: (1) numbers and types completed from 2001 through 2006; (2) processes and standards that guided planning, conducting, and reporting; (3) outcomes; and (4) factors that helped or impeded in conducting and using them. GAO evaluated the activities of nine agencies covering health, safety, environmental, financial, and economic regulations and accounting for almost 60 percent of all final regulations issued within the review period. GAO also reviewed available documentation, assessed a sample of completed reviews, and solicited perspectives on the conduct and usefulness of reviews from agency officials and knowledgeable nonfederal parties.
section_title: What GAO Found
paragraphs: From 2001 through 2006, the selected agencies completed over 1,300 reviews of existing regulations. The mix of reviews conducted, in terms of impetus (mandatory or discretionary) and purpose, varied among agencies. Mandatory requirements were sometimes the impetus for reviews, but agencies more often exercised their own discretionary authorities to review regulations. The main purpose of most reviews was to examine the effectiveness of the implementation of regulations, but agencies also conducted reviews to identify ways to reduce regulatory burdens and to validate the original estimates of benefits and costs. The processes and standards guiding reviews varied across agencies and the impetus and phase of the review process. They varied by the extent to which agencies applied a standards-based approach, incorporated public participation, and provided complete and transparent documentation. For example, while almost all agencies had standards for conducting mandatory reviews, only about half of the agencies had such standards for conducting discretionary views. The extent of public involvement varied across review phases, with relatively more in the selection process for discretionary reviews. Agencies more often documented all phases of mandatory reviews compared to discretionary reviews. The outcomes of reviews included amendments to regulations, changes to guidance and related documents, decisions to conduct additional studies, and confirmation that existing rules achieved the intended results. Mandated reviews, in particular, most often resulted in no changes. Agencies noted that discretionary reviews generated additional action more often than mandatory reviews. Agencies and nonfederal parties generally considered all of the various review outcomes useful. Multiple factors helped or impeded the conduct and usefulness of retrospective reviews. Agencies identified time and resources as the most critical barriers, but also cited factors such as data limitations and overlapping or duplicative review requirements. Nonfederal parties said that the lack of transparency was a barrier; they were rarely aware of the agencies' reviews. Both agencies and nonfederal parties identified limited public participation as a barrier. To help improve the conduct and usefulness of reviews, agencies and nonfederal parties suggested practices such as pre-planning to identify data needed to conduct effective reviews, a prioritization process to address time and resource barriers, high-level management support, grouping related regulations together when conducting reviews, and making greater use of diverse communication technologies and venues to promote public participation.

section_title: Letter
paragraphs: Regulation is a basic tool of government. Each year, federal agencies issue  thousands of regulations to ensure public health and safety, protect the  environment, and facilitate the effective functioning of financial markets,  among other goals. The total costs of these regulations are estimated to be  in the hundreds of billions of dollars, and the estimated benefits are even  higher. Congress and presidents have imposed many procedural and  analytical requirements on the regulatory process, in part, because of the  substantial costs and benefits of regulations. The requirements focus  predominately on agencies’ development of new rules, but some, such as  Section 610 reviews required by the Regulatory Flexibility Act (RFA), call  for the evaluation of existing regulations. Such evaluations can be done  through a variety of activities that may be considered retrospective  regulatory reviews. For purposes of this report, we generally use the term  retrospective review to mean any assessment of an existing regulation,  primarily for purposes of determining whether (1) the expected outcomes  of the regulation have been achieved; (2) the agency should retain, amend,  or rescind the regulation; and/or (3) the actual benefits and costs of the  implemented regulation correspond with estimates prepared at the time  the regulation was issued. We have reported that federal and nonfederal  stakeholders and experts identified such evaluations as highly desirable  and potentially useful but, at the same time, recognized that they may be  difficult to do.
To provide insights concerning how agencies evaluate existing regulations,  you requested that we examine agencies’ implementation of retrospective  regulatory reviews and the results of such reviews. For selected agencies,  we are reporting on:  1)  the magnitude of retrospective review activity and type of retrospective  reviews agencies completed from calendar year 2001 through 2006,  including the frequency, impetus (mandatory or discretionary), and  purposes of the reviews;  2)  the processes and standards that guide agencies’ planning, conducting,  and reporting on reviews, and the strengths and limitations of the various  review processes and requirements;  3)  the outcomes of reviews, including the perceived usefulness of the  reviews to agencies and the public and how they affected subsequent  regulatory activities; and  4)  the factors that appear to help or impede agencies in conducting or using  retrospective reviews, including which methods, if any, that agencies and  we identified as most cost-effective for conducting reviews.
We assessed the activities of nine agencies and their relevant subagencies  from 2001 through 2006, including the Departments of Agriculture (USDA),  Justice (DOJ), Labor (DOL), and Transportation(DOT); Consumer Product  Safety Commission (CPSC); Environmental Protection Agency (EPA);  Federal Communications Commission (FCC); Federal Deposit Insurance  Corporation (FDIC); and the Small Business Administration (SBA). We  selected these agencies because they include Cabinet departments,  independent agencies, and independent regulatory agencies covering a  wide variety of regulatory activities in areas such as health, safety,  environmental, financial, and economic regulation. We were not able to  assess the activities of all regulatory agencies, due to time and resource  constraints, but, given the diversity and volume of federal regulation  conducted by the nine selected agencies, the results of our assessment  should provide a reasonable characterization of the variety of  retrospective regulatory reviews and the issues associated with their  implementation. Further, our Federal Rules Database showed that the nine  agencies accounted for almost 60 percent of all final rules published from  2001 through 2006. The nine agencies accounted for almost 36 percent of  all major rules (for example, rules with at least a $100 million impact on  the economy) published during that time period.
To address our four objectives, we reviewed documentation from the  selected agencies and interviewed agency officials. We administered and  collected responses to a structured data collection instrument that  solicited information on agencies’ retrospective review activities and  lessons learned. We supplemented this data collection by obtaining  information from the Federal Register, Unified Agenda, and published  dockets and reports listed on agency Web sites, and by conducting a more  detailed assessment of a sample of studies completed between 2001 and  2006. We also solicited perspectives on the usefulness of agency reviews  and factors that help or impede the conduct of reviews from regulatory  oversight entities, such as the Office of Information and Regulatory Affairs  (OIRA) within the Office of Management and Budget (OMB), the Office of  Advocacy within SBA, and knowledgeable nonfederal parties from a  variety of sectors (academia, business, public advocacy, and state  government). We reviewed agency policies, executive orders, and  statutory requirements to identify what policies and procedures agencies  have in place to guide planning, conducting, and reporting on reviews.  Further, to identify the strengths and limitations of the processes, we  assessed agencies’ use of three systematic review practices that are  important to the effectiveness and transparency of agency reviews,  including the (1) use of a standards-based approach, (2) incorporation of  public involvement, and (3) documentation of review processes and  results. In our more detailed assessment of a limited sample of  retrospective reviews completed between 2001 and 2006, we also assessed  the agencies’ application of research and economic standards and  practices. The sample that we assessed was too small to be generalizable  to all agency retrospective reviews, but this assessment illustrated some of  the strengths and limitations that exist in agency reviews. We conducted  our work in accordance with generally accepted government auditing  standards from May 2006 through April 2007. (See app. I for a more  detailed description of our objectives, scope, and methodology.)
subsections: section_title: Background
paragraphs: The performance and accountability of government agencies and  programs have attracted substantial attention by Congress, the executive  branch, and others, including GAO. For example, the Government  Performance and Results Act of 1993 (GPRA) established a statutory  framework designed to provide congressional and executive decision  makers with objective information on the relative effectiveness and  efficiency of federal programs and spending. A central element of the  current administration’s Presidential Management Agenda is the Program  Assessment Rating Tool (PART), designed by OMB to provide a consistent  approach to assessing federal programs in the executive budget formation  process. Over the past 2 years, we have emphasized that the long-term  fiscal imbalance facing the United States and other significant trends and  challenges establish the need to reexamine the base of the federal  government and its existing programs, policies, functions, and activities.  We noted that a top-to-bottom review of federal programs and policies is  needed to determine if they are meeting their objectives. To support this  reexamination, the policy process must have the capacity to provide  policymakers not only with information to analyze the performance and  results achieved by specific agencies and programs, but that of broad  portfolios of programs and tools (including regulation) contributing to  specific policy goals.
While initiatives such as GPRA and PART can evaluate regulatory  performance at the agency or program level, Congress and presidents also  have instituted requirements that focus on a more basic element, the  agencies’ existing regulations. For example, through Section 610,  Congress requires agencies to review all regulations that have or will have  a “significant economic impact upon a substantial number of small  entities” (generally referred to as SEISNOSE) within 10 years of their  adoption as final rules. The purpose of these reviews is to determine  whether such rules should be continued without change, or should be  amended or rescinded, consistent with the stated objectives of applicable  statutes, to minimize impacts on small entities. As discussed later in this  report, Congress also established other requirements for agencies to  review the effects of regulations issued under specific statutes, such as the  Clean Air Act. Every president since President Carter has directed  agencies to evaluate or reconsider existing regulations. For example,  President Carter’s Executive Order 12044 required agencies to periodically  review existing rules; one charge of President Reagan’s task force on  regulatory relief was to recommend changes to existing regulations;  President George H.W. Bush instructed agencies to identify existing  regulations to eliminate unnecessary regulatory burden; and President  Clinton, under section 5 of Executive Order 12866, required agencies to  develop a program to “periodically review” existing significant  regulations. In 2001, 2002, and 2004, the administration of President  George W. Bush asked the public to suggest reforms of existing  regulations.
The Office of Advocacy within SBA and OIRA within OMB have issued  guidance to federal agencies on the implementation of, respectively, the  RFA and Executive Order 12866. The available guidance documents,  including OMB Circular A-4 on regulatory analysis, focus primarily on the  procedural and analytical steps required for reviewing draft regulations,  but they are also generally applicable whenever agencies analyze the  benefits and costs of regulations, including those of existing regulations.  However, the documents provide limited guidance focused specifically on  retrospective reviews. In a short discussion on periodic reviews of existing  rules pursuant to Section 610, the Office of Advocacy’s RFA guidance  briefly touches on planning, conducting, and reporting the results of  reviews, but the OMB/OIRA guidance does not specifically address the  executive order’s periodic review requirement.
In our prior work on this subject, we found that agencies infrequently  performed certain types of reviews and identified potential challenges and  benefits of conducting retrospective reviews. In 1999, we reported that  assessments of the costs and benefits of EPA’s regulations after they had  been issued had rarely been done. In a series of reports on agencies’  compliance with Section 610 requirements, we again noted that reviews  were not being conducted. We identified a number of challenges to  conducting retrospective reviews. In general, these included the  difficulties that regulatory agencies face in demonstrating the results of  their work, such as identifying and collecting the data needed to  demonstrate results, the diverse and complex factors that affect agencies’  results (for example, the need to achieve results through the actions of  third parties), and the long time period required to see results in some  areas of federal regulation. We also identified concerns about the balance  of regulatory analyses, because it may be more difficult to estimate the  benefits of regulations than it is to estimate the costs. Our report on EPA’s  retrospective studies noted that such studies were viewed as hard to do  because of the difficulty in obtaining valid cost data from regulated  entities and quantifying actual benefits, among other reasons. Our work on  agencies’ implementation of Section 610 requirements revealed that there  was confusion among the agencies regarding the meaning of key terms  such as SEISNOSE, what RFA considers to be a “rule” that must be  reviewed, and whether amending a rule within the 10-year period provided  in Section 610 would “restart the clock,” among other things.
However, our prior work also pointed out that retrospective evaluation  could help inform Congress and other policymakers about ways to  improve the design of regulations and regulatory programs, as well as play  a part in the overall reexamination of the base of the federal government.  For example, we reported that retrospective studies provided insights on a  market-based regulatory approach to reduce emissions that cause acid  rain and that the studies found that the actual costs of reducing emissions  were lower than initially estimated. Experts and stakeholders whom we  consulted during work on federal mandates (including regulations) and  economic and regulatory analyses told us that they believe more  retrospective analysis is needed and, further, that there are ways to  improve the quality and credibility of the analyses that are done. One  particular reason cited for the usefulness of retrospective reviews was that  regulations can change behavior of regulated entities, and the public in  general, in ways that cannot be predicted prior to implementation.
section_title: All Selected Agencies Reviewed Existing Regulations, but the Purposes of the Reviews Varied
paragraphs: Since 2001, the nine selected agencies conducted multiple retrospective  reviews of their existing regulations to respond to mandatory and  discretionary authorities. Between 2001 and 2006, the nine agencies  reported completing over 1,300 mandatory or discretionary reviews, but  many could not tally the total number of reviews that they have  conducted. The reviews addressed multiple purposes, such as examining  the efficiency and effectiveness of regulations and identifying  opportunities to reduce regulatory burden. The mix of reviews  conducted—in terms of the impetus to start a review and the purpose of  the review—varied not only across but also within the agencies that we  examined.
subsections: section_title: Agencies Conducted Most Reviews on Their Own Discretion Rather than in Response to Mandatory Requirements, but the Total Number Is Unknown
paragraphs: Agencies conducted reviews in response to various mandatory  requirements, but most agencies indicated that they conducted the  majority of reviews based on their own discretion. Agencies reported  conducting reviews, at their own discretion, in response to their agencies’  own formal policies and procedures to conduct reviews or to respond to  accidents or similar events, changes in technology and market conditions,  advances in science, informal agency feedback, and petitions, among other  things. Among the main mandatory sources of reviews were  governmentwide statutory requirements (such as Section 610 of the RFA  or the Paperwork Reduction Act (PRA)), agency- or program-specific  statutory requirements (such as Section 402 of the Telecommunications  Act of 1996 that requires FCC to review the regulations promulgated under  the act every 2 years), Executive Order 12866 on Regulatory Planning and  Review (which requires agencies to periodically conduct reviews of their  significant regulations), and other executive branch directives (such as  the memorandum on plain language). In addition, agencies conducted  reviews in response to OMB initiatives to solicit nominations for  regulatory reexamination, which were not statutorily mandated reviews or  required by a specific executive order, but were a part of executive branch  regulatory reform efforts. The frequency of agency reviews varied based  on review requirements. In some cases, agencies were required to conduct  reviews every 2 years to 10 years. Available information on completed  reviews indicated that the numbers of reviews completed by individual  agencies in any given year varied from a few to more than a hundred.
Agencies’ officials reported they conducted discretionary reviews more  often than mandated studies. These discretionary reviews were often  prompted by drivers such as informal suggestions or formal petitions from  regulated entities seeking regulatory changes, suggestions from the agency  personnel who implement and enforce the regulations, departmentwide  initiatives to review regulations, or changes in particular technologies,  industries, or markets. Although these discretionary reviews were often  undocumented, our review of publicly available results for retrospective  reviews confirmed that, in some instances, agencies like those within DOL,  DOT, and DOJ cited discretionary drivers as the motivation for their  reviews.
Among the various reasons for agency-initiated reviews, petitions were a  major review driver for almost all of the agencies. Agency officials cited  three types of petition activities that largely influenced them to conduct  regulatory reviews. These petition activities included: (1) petitions for  rulemaking where the regulated entities or public requested a modified  rule that includes new or updated information, (2) petitions for  reconsideration where regulated entities or the public requested that the  agency revisit an aspect of the rule, and (3) petitions for waivers where the  regulated entities or public requested waivers from regulatory  requirements. Some agencies, such as DOT and MSHA, have policies to  begin a more formal review of the entire regulation when there are a  substantial number of petitions.
Agencies also reported conducting reviews in response to various  mandatory requirements. However, whether they conducted them more  often in response to governmentwide requirements or requirements  specific to the policy area or sector that they regulate varied among and  within agencies. For example, DOT, USDA’s APHIS, and SBA conducted  many mandatory reviews in response to Section 610 requirements, while  others, such as EPA and FCC, conducted most mandatory reviews in  response to statutes that applied specifically to areas that they regulate.  Specifically, all of the mandatory reviews completed by APHIS and SBA  since 2001 were conducted in response to Section 610 requirements.  Similarly, DOT initiated a systematic 10-year plan for reviewing all of its  sections of the CFR in order to satisfy the provisions of Section 610, along  with other mandatory review requirements. DOT reported completing  over 400 reviews between 2001 and 2006 under this 10-year plan. However,  even within DOT, variation existed with regard to which review  requirements more often prompted reviews. For example, unlike some  other DOT agencies, FAA conducted the majority of its mandatory reviews  in response to industry-specific review requirements rather than  governmentwide retrospective review mandates.
While EPA, FCC, and FDIC also conduct some reviews in response to  governmentwide requirements, such as Section 610, they most often  conducted mandatory reviews to comply with statutes that apply  specifically to areas that they regulate. EPA officials provided a list of  seven statutes that require the agency to conduct mandatory retrospective  reviews, including requirements in the Safe Drinking Water Act, Clean Air  Act, Clean Water Act, and Federal Food, Drug and Cosmetic Act, among  others. Similarly, FCC conducts many of its mandatory retrospective  reviews to comply with the biennial and quadrennial regulatory review  requirements under the Communications Act, as amended. One agency in  our review, FDIC, conducted most of its mandatory reviews in response to  the financial-sector-specific Economic Growth and Regulatory Paperwork  Reduction Act of 1996 (EGRPRA), which requires federal financial  regulatory agencies to identify outdated, unnecessary, or unduly  burdensome statutory or regulatory requirements every 10 years. Finally,  agencies also conducted single comprehensive reviews of a regulation as a  method to satisfy multiple review requirements. For example, DOL’s EBSA  and OSHA, DOT, and FDIC conducted reviews that incorporated Section  610 and other review requirements into broader reviews that the agency  initiated as part either of their regular review program or in response to  industry feedback and petitions, among other things. (Table 1 illustrates  the range of mandatory and discretionary reviews conducted by selected  agencies included in our scope.)
The frequency with which agencies were required to conduct certain  reviews varied depending on the statutory requirement. For example,  under some statutory requirements, agencies must review certain  regulations every 2 or 3 years. Other requirements cover a longer period,  such as Section 610’s requirement to revisit certain rules 10 years after  their issuance, or specify no particular time. In addition, agency policies  on the frequency with which to conduct discretionary reviews varied. For  example, USDA has a departmentwide requirement generally to review  economically significant and major regulations every 5 years, while FAA  conducts its reviews on a 3-year cycle. Some agencies, such as DOT, had a  departmentwide requirement to review all regulations in its CFR within 10  years of the creation of its Unified Agenda Regulatory Plan, but provided  discretion to its agencies on when to conduct reviews during that period.
Despite a perception expressed by some federal and nonfederal parties  that agencies are not actively engaged in reviewing their existing  regulations, we found that agencies reported results for over 1,300 reviews  completed between 2001 through 2006. However, even this number may  understate the total because it does not account for all of the  undocumented discretionary reviews conducted by agencies. In addition,  the available information reported by the agencies (and others, such as  OMB) may include some duplication or fail to capture additional follow-up  reviews by the agencies. It is also important to note that the units of  analysis that agencies used in their reviews, and the scope of individual  reviews, varied widely. Therefore, the level of agency review activity  cannot be compared by only assessing the number of reviews completed.  For example, a review might be as narrowly focused as the review that  DOT’s NHTSA completed in 2005 on 49 CFR part 571.111 (regarding  rearview mirrors) or as broad as a FDIC review that included analyses of  131 regulations within a single review. DOT also pointed out that because  rules vary widely in complexity, even a narrowly focused review can be a  major undertaking. For example, NHTSA may review a one-sentence rule  that says, “all motor vehicles sold in the U.S. must be equipped with  airbags.” In another review, they may look at 131 regs that impose very  minor requirements. It may well be a far more time and resource intensive  effort for NHTSA to review the effect of the one-sentence airbag  requirement. Further, because some agencies produce many more  regulations than others do, the number of reviews that agencies reported  conducting also should be considered within the context of their volume  of regulations and rulemaking activity.
Table 2 lists the number of reviews that agencies reported completing  between 2001 and 2006.
section_title: Agency Officials Reported that They Most Often Conducted Reviews to Assess the Effectiveness of Their Regulations
paragraphs: According to agency officials, they conducted reviews for various  purposes but most often focused on assessing the effectiveness of  regulations. Agency officials reported conducting reviews to evaluate or  identify (1) the results produced by existing regulations, including  assessments to validate the original estimates of projected benefits and  costs associated with the regulation; (2) ways to improve the efficiency or  effectiveness of regulatory compliance and enforcement; and (3) options  for reducing regulatory burdens on regulated entities. Overall, agency  officials reported that their reviews more often focused on improving  effectiveness, with burden reduction as a secondary consideration, even  for review requirements that are geared toward identifying opportunities  for burden reduction, such as those within Section 610. The approaches  that agencies reported taking to assess “effectiveness” varied, including  measuring whether the regulations were producing positive outcomes,  facilitated industry compliance with relevant statutes, and/or were  assisting the agency in accomplishing its goals. For example, DOL officials  reported that the agency attempts to assess “effectiveness” by measuring  improvements resulting from the regulation and by analyzing factors  required by Section 610 of RFA and Section 5 of Executive Order 12866,  such as whether there is new technology, excessive complexity, conflict  with other regulations, or whether cost-effectiveness can be improved.  However, the agency does not conduct what would be considered a  traditional benefit-cost economic analysis. Other agencies, such as EPA,  reported assessing “effectiveness” by determining whether the regulation  is achieving its intended goal as identified in related statutes. For example,  officials from EPA reported that their retrospective review of the Clean  Water Act helped them estimate the extent to which toxic pollutants  remained, thereby aiding them to assess the effectiveness of each existing  regulation in various sections of the act. Since the goal of the Clean Water  Act is zero discharge of pollutants, the review was an indicator of the  progress the agency had made toward the statutory goals. Our limited  review of agency summaries and reports on completed retrospective  reviews revealed that agencies’ reviews more often attempted to assess  the effectiveness of their implementation of the regulation rather than the  effectiveness of the regulation in achieving its goal.
section_title: Agencies Varied in the Extent to Which They Used Formal Processes and Standards for Selecting, Conducting, and Reporting on Retrospective Reviews
paragraphs: The use of systematic evaluation practices and the development of formal  retrospective regulatory review processes varied among and even within  the agencies. To assess the strengths and limitations of various agency  review processes, we examined the three phases of the process: the  selection of regulations to review, conduct of reviews, and reporting of  review results. We identified three practices that are important for  credibility in all phases of the review, including the extent to which  agencies (1) employed a standards-based approach, (2) involved the  public, and (3) documented the process and results of each phase of the  review. The use of these evaluation practices in agency review processes,  and the development of formal policies and procedures to guide their  review processes, varied among the agencies. Furthermore, whether  agencies used these practices often varied according to whether they  conducted discretionary or mandatory reviews. Fewer agencies used  standards-based approaches or documented the selection, conduct, or  reporting of reviews when they were discretionary. While more agencies  incorporated public involvement in the selection of regulations for review  in discretionary reviews, fewer included public involvement in the conduct  of those reviews. Generally, agencies did not consistently incorporate the  three practices we identified into their discretionary reviews as often as  they did for their mandatory reviews. However, it is important to note that  some agencies have recently developed their review programs and others  are attempting to find ways to further develop and improve their  retrospective review processes (i.e., establishing units that focus on  retrospective reviews and seeking assistance with establishing  prioritization systems). For example, CPSC and EBSA recently established  their review programs, and ETA recently established a centralized unit to  develop retrospective review processes for the agency. Furthermore,  although the process has been delayed because of other regulatory  priorities, MSHA recently sought contractor assistance with developing a  more standard selection process for its reviews. (Additional details on  each agency’s review process can be seen in apps. II through XI).
subsections: section_title: Agencies Employed Standards-Based Approaches More Often in Mandatory Reviews
paragraphs: All of the agencies in our review reported that they have practices in place  to help them select which of their existing regulations to review. Some of  these agencies have established or are establishing standard policies and  procedures, and guidance for this selection. While almost all of the  agencies reported having standards to select regulations for their  mandated reviews because the mandates identified which regulations  agencies must review or prescribed standards for selecting regulations to  review, fewer agencies had yet developed formal standards for selecting  regulations to review under their own discretion. Agencies that had  established such processes reported that they were useful in determining  how to prioritize agency review activities. For example, DOL’s EBSA and  CPSC established detailed standards for the selection of their  discretionary reviews, which they used to prioritize their retrospective  review activities and the corresponding use of agency resources. The  officials reported that their standards-based selection processes allowed  them to identify which regulations were most in need of review and to  plan for conducting those reviews. Furthermore, officials from both  agencies reported that their prioritization processes allowed them to focus  on more useful retrospective review activities, which resulted in  identifying important regulatory changes. We observed that this standards- based approach to selecting regulations also increased the transparency of  this phase of the review process. We were better able to determine how  these agencies selected which regulations to review. Further, as identified  by CPSC officials and others, applying a standards-based approach to  selecting regulations to review can provide a systematic method for  agencies to assess which regulations they should devote their resources  toward, as they balance retrospective review activities with other mission- critical priorities. The consequence of not using a standards-based  approach could result in diverting attention from regulations that, through  criteria, agencies could identify as needing the most consideration.  Otherwise, agencies may instead focus their reviews on regulations that  would warrant less attention. In addition—for each phase of the review  process—using a standards-based approach can allow agencies to justify  the appropriateness of the criteria that they use (either because they are  objective, or at least mutually agreed upon), and thus gain credibility for  their review. Selecting a different criterion or set of standards for each  review could imply a subjective evaluation process and possibly an  arbitrary treatment of one regulation versus another.
Similarly, agencies varied in their use of a standards-based approach when  analyzing regulations in reviews. While most of the mandatory review  requirements identified by the selected agencies establish standard review  factors that agencies should consider when conducting their reviews— which agencies reported following—about half of the agencies within our  review have formal policies and procedures that establish a standards- based approach for conducting discretionary reviews. Specifically, the five  agencies that had formal procedures that established standards defined  the steps needed to conduct reviews and review factors used to assess  regulations. Other agencies had not yet established written guidance or  policies to guide their conduct of reviews or define the analytical methods  and standards they should use to assess regulations. When we identified  agencies that did specify objectives and review factors that they used  when conducting reviews, they ranged from general (such as to identify if  they were still needed or could be simplified) to specific (such as to  account for new developments in practices, processes, and control  technologies when assessing emission standards). We observed that the  more specific sets of evaluative factors that agencies considered in  different types of reviews shared several common elements, such as  prompting agencies to consider comments and complaints received by the  public and the regulation’s impact on small entities.
Our assessment of a small sample of agency reviews revealed that, even  when relevant standards were available to agencies for conducting  reviews, they did not always apply them. In one case, the economic  analyses conducted in the agency review did not employ some of the  relevant best practices identified for these types of analyses in OMB’s  guidance. In another case, in conducting a mandated Section 610 review,  the agency relied only on public comments to evaluate the regulation and  did not provide any additional assessment on the other four factors  identified in the mandatory review requirements. According to agency  documentation, it (1) provided no further assessment of the factors and  (2) concluded that the regulation did not need changes, because the  agency received no public comments. Conversely, our review of another  agency’s Section 610 assessment of regulations provided an example of  how agencies that apply standards can use the reviews to produce  substantive results. Because the agency relied both on public comments  and its own assessment of the five Section 610 review factors/standards,  the agency identified additional changes that would not have been  identified if it had relied on only one of these standards. When we  assessed whether agencies applied other generally accepted review  standards, such as identifying how well they implemented the regulation,  whether there was a pressing need for the regulation, or whether intended  or unintended effects resulted from the regulation, we observed that some  agencies’ analyses did not.
Most of the agencies within our review had established policies on  reporting the results of their mandatory retrospective reviews to senior  management officials and to the public, although in some cases, there was  no requirement to do so. For example, Section 610 requires federal  agencies to report on the initiation of a review, but does not require  agencies to report the findings or policy decisions resulting from the  review. Nevertheless, as a matter of practice, all of the agencies within our  review reported information on the results of their Section 610 reviews,  though the content and level of detail varied. Conversely, about half of the  agencies in our review had not established written policies or procedures  for reporting the results of their discretionary retrospective reviews to the  public. As a result, we found inconsistencies in practices within agencies  on how and whether they reported the results of these reviews to the  public, resulting in less transparency in this process. For example,  agencies within DOT, USDA, and some within DOL indicated that, at  times, they report review results of discretionary reviews in the preambles  of proposed rule changes or through other mechanisms, but they did not  consistently do so. Agencies also reported that they often do not report the  results of discretionary reviews at all, if they did not result in a regulatory  change. This lack of transparency may be the cause for assertions from  nonfederal parties that they were unaware that agencies conducted  discretionary reviews of their existing regulations. Figure 1 illustrates the  differences in agencies’ use of a standards-based approach in the three  phases of the review process, for discretionary and mandatory reviews.
section_title: Level of Public Participation Varied by Impetus and Phase of the Review Process
paragraphs: Agency practices varied for soliciting and incorporating public input  during the selection of regulations to review. For example, in 2005 DOT  formally requested nominations from the public on which regulations it  should review. Further, in the 2006 semi-annual Unified Agenda, the  agency sought public suggestions for which regulations it should review.  However, agencies in our review more often reported that they solicit  public input on which regulations to review during informal meetings with  their regulated entities for their discretionary reviews. Techniques used by  some of the agencies to obtain public input were informal networks of  regulated entities, agency-sponsored listening sessions, and participation  in relevant conferences. For example, USDA officials reported that they  regularly meet with industry committees and boards and hold industry  listening sessions and public meetings to obtain feedback on their  regulations. DOJ’s DEA reported holding yearly conferences with industry  representatives to obtain their feedback on regulations. While almost all of  the agencies in our review reported soliciting public input in a variety of  ways for their discretionary reviews, SBA relied primarily on the Federal  Register’s Unified Agenda to inform the public about their reviews. For  mandatory reviews, agencies appeared to do less outreach to obtain public  input on the selection of regulations to review. However, it is important to  note that such public input into the selection phase of mandated reviews  may not be as appropriate because agencies have less discretion in  choosing which regulations to review under specific mandates.
Almost all agencies within our review reported soliciting public input into  the conduct of their mandatory reviews, either through the notices in the  Federal Register, or in more informal settings, such as roundtable  discussions with industries, or both. For these reviews, agencies appeared  to almost always place notices in the Federal Register, including the  semiannual Unified Agenda, soliciting public comments, but nonfederal  parties cited these tools as being ineffective in communicating with the  public because these sources are too complicated and difficult to  navigate. Our review of the Federal Register confirmed that agencies  often provided such notice and opportunity for public comment on these  regulatory reviews. In addition, some agencies, such as DOJ’s ATF,  USDA’s AMS, and FCC, reported on the agencies’ analysis of the public  comments and their effect on the outcome of the review. However, we  were not always able to track such notices or discussions of public input  into the conduct of discretionary reviews. Officials from DOL’s MSHA and  ETA stated that, if internal staff generated the review and it was technical  in nature, the agency might not include the public when conducting a  review. However, we were able to observe that some agencies, such as  FCC, DOT, and EPA, did post comments received from petitioners and  solicited public comments on these types of discretionary reviews in order  to inform their analyses.
Most agencies within our review did not solicit or incorporate public input  on the reported results of their reviews. We are only aware of a few  agencies (NHTSA, FCC, and EPA) that provided opportunities for  additional public feedback on the analysis of their regulations before  making final policy decisions. Figure 2 illustrates the difference in  agencies’ incorporation of public involvement in the three phases of the  review process, for discretionary and mandatory reviews.
section_title: The Level of Documentation in Agencies’ Reviews Varied Depending on the Impetus and Phase of the Review, but Overall Could Be Improved
paragraphs: Agency documentation for selecting regulations to review varied from  detailed documentation of selection criteria considered to no  documentation of the selection process. For example, DOL’s EBSA  documented its selection process, including selection criteria used, in  detail in its Regulatory Review Program. However, agencies did not always  have written procedures for how they selected regulations for  discretionary reviews. SBA officials, for example, were not able to verify  the factors they considered during the selection of some regulations that  they reviewed because employees who conducted the reviews were no  longer with the agency and they did not always document their review  process. The officials indicated that the agency considered whether the  regulations that they reviewed under Section 610 requirements were  related to or complement each other, but did not always document  selection factors for discretionary reviews. This lack of documentation  was particularly important for SBA because the agency reported having  high staff turnover that affected maintaining institutional knowledge about  retrospective regulatory review plans. For example, officials reported that  within the 8(a) Business Development program, there is a new Director  almost every 4 years who sets a new agenda for retrospective regulatory  review needs. However, because of other pressing factors, these reviews  are often not conducted. Consequently, we conclude that this lack of  documentation may result in duplicative agency efforts to identify rules for  review or not including rules that the agency previously identified as  needing review.
Agency documentation of the analyses conducted in reviews ranged from  no documentation to detailed documentation of their analysis steps in  agency review reports. While some agencies reported the analysis  conducted in great detail in review reports, others summarized review  analysis in a paragraph or provided no documentation of review analysis  at all. Some agencies did not provide detailed reports because they did not  conduct detailed analyses. For example, SBA officials reported that, for  Section 610 reviews, they do not conduct any additional analysis of the  regulation if the public does not comment on the regulation. Our  assessment of a sample of agency review reports revealed that, even for  some reviews that provided a summary of their analysis, we could not  completely determine what information was used and what analysis the  agency conducted to form its conclusions. Further, agencies in our  reviews reported that they less often documented the analysis of those  reviews conducted on a discretionary basis. One SBA official  acknowledged that it would be helpful if the agency better documented its  reviews.
For each of the agencies we reviewed, we were able to find reports on the  results of some or all of their completed reviews. Nonetheless, the content  and detail of agency reporting varied, ranging from detailed reporting to  only one-sentence summaries of results. Some agencies told us that they  typically only document and report the results if their reviews result in a  regulatory change. Further, officials from many agencies primarily  reported conveying the results of only mandatory reviews to the public.  Agencies employed a variety of methods to report review results to the  public, but more often used the Federal Register and Unified Agenda.  Although agencies in our review often reported the results of their  mandatory reviews by posting them in the Federal Register, agencies like  OSHA, CPSC, FCC, and those within DOT also made some or all their  review reports available on their Web sites. During our joint agency exit  conference, officials indicated that agencies could do more to report their  review analysis and results to a wider population of the public by using the  latest information technology tools. Specifically, they said that agencies  could: (1) use listserves to provide reports to identified interested parties,  (2) make review analysis and results more accessible on agency Web sites,  and (3) share results in Web-based forums, among other things.  Nonfederal parties also reported that agencies could improve their efforts  to report review results to the public and cited similar communication  techniques. Additionally, nonfederal parties reported that agencies could  improve communication by conducting more outreach to broad  networking groups that represent various stakeholders, such as the  Chamber of Commerce, the National Council of State Legislators, and the  Environmental Council of States, and tailoring their summary of the  review results to accommodate various audiences. Figure 3 illustrates the  differences in agencies’ use of documentation in the three phases of the  review process, for discretionary and mandatory reviews.
section_title: Reviews Resulted in a Variety of Outcomes that Were Considered Useful, but Mandatory Reviews Most Often Resulted in No Change
paragraphs: Agency reviews of existing regulations resulted in various outcomes— from amending regulations to no change at all—that agencies and  knowledgeable nonfederal parties reported were useful. Mandatory  reviews most often resulted in no changes to regulations. Conversely,  agency officials reported that their discretionary reviews more often  generated additional action. Both agency officials and nonfederal parties  generally considered reviews that addressed multiple purposes more  useful than reviews that focused on a single purpose.
Agency reviews of existing regulations resulted in various outcomes  including: changes to regulations, changes or additions to guidance and  other related documents, decisions to conduct additional studies, and  validation that existing rules were working as planned. Agencies and  nonfederal parties that we interviewed reported that each of the outcomes  could be valuable to the agency and the public. However, for the  mandatory reviews completed within our time frame, the most common  result was a decision by the agency that no changes were needed to the  regulation. There was a general consensus among officials across the  agencies that the reviews were sometimes useful, even if no subsequent  actions resulted, because they helped to confirm that existing regulations  were working as intended. Officials of some agencies further noted that,  even when mandatory reviews do not result in changes, they might have  already made modifications to the regulations. Our examinations of  selected completed reviews confirmed that this is sometimes the case.
Among the various outcomes of retrospective reviews were changes to  regulations, changes or additions to guidance and other related  documents, decisions to conduct additional studies, and validation that  existing rules were working as planned. Agencies and nonfederal parties  that we interviewed reported that each of the outcomes could be valuable  to the agency and the public. In our review of agency documentation, we  confirmed that some reviews resulted in regulatory actions that appeared  useful. Our review of agency documentation confirmed that some reviews  can prompt potentially beneficial regulatory changes. For example,  OSHA’s review of its mechanical press standard revealed that the standard  had not been implemented since its promulgation in 1988 because it  required a validation that was not available to companies. Consequently,  OSHA is currently exploring ways to revise its regulation to rely upon a  technology standard that industries can utilize and that will provide for  additional improvements in safety and productivity. Although some  reviews appeared to result in useful changes, the most common result for  mandatory reviews was a decision by the agency that no changes were  needed to the regulation. However, there was a general consensus among  officials across the agencies that such decisions are still sometimes useful  because they helped to confirm that existing regulations were working as  intended. Officials of some agencies further noted that, even when  mandatory reviews do not result in changes, they might have already made  modifications to the regulations. Our examinations of selected completed  reviews confirmed that this is sometimes the case.
Agency officials reported that their discretionary reviews resulted in  additional action—such as prompting the agencies to complete additional  studies or to initiate rulemaking to amend the existing rule—more often  than mandatory reviews. In particular, officials from USDA’s AMS and  FSIS, FCC, SBA, EPA, DOJ, and DOT reported that Section 610 reviews  rarely resulted in a change to regulations. Although AMS has initiated 19  Section 610 reviews since 2001, AMS officials reported that, because of  their ongoing engagement with the regulated community, these reviews  did not identify any issues that the agency did not previously know, and  therefore resulted in no regulatory changes. Similarly, none of the Section  610 reviews conducted by SBA and DOL’s EBSA resulted in changes to  regulations, and few changes resulted from Section 610 reviews conducted  by EPA, FCC, DOJ, and DOT. The one apparent outlier in our analysis was  FDIC, which conducted many of its reviews in response to the financial- sector-specific burden reduction requirement in EGRPRA. According to  FDIC officials and the agency’s 2005 annual report, reviews conducted in  response to this mandate resulted in at least four regulatory changes by  the agency since 2001 and over 180 legislative proposals for regulatory  relief that FDIC and other members of the FFIEC presented to Congress.  The legislative proposals led to the passage of the Financial Services  Regulatory Relief Act, which reduced excessive burden in nine areas in the  financial sector. In addition, our analyses of the December 2006 Unified  Agenda revealed that FDIC attributed four of its nine proposed or initiated  modifications to existing regulations to statutory mandates.
Most agencies’ officials reported that reviews they conduct at their own  discretion—in response to technology and science changes, industry  feedback, and petitions—more often resulted in changes to regulations. As  one of many examples, EBSA officials reported that because the reviews  initiated and conducted by the agency to date have been precipitated by  areas for improvement identified by the regulated community or the  agency, virtually all the reviews have resulted in changes to the reviewed  rules. They reported that, in general, these changes have tended to provide  greater flexibility (e.g., the use of new technologies to satisfy certain  disclosure and recordkeeping requirements) or the streamlining and/or  simplifying of requirements (e.g., reducing the amount of information  required to be reported). Similarly, DOT officials and other agencies’  officials reported that reviews that they conduct in response to industry  and consumer feedback and harmonization efforts also resulted in  changes to regulations more often than mandated reviews.
In addition, some agencies also reported that reviews that incorporated  review factors from both their mandatory requirements and factors  identified by the agency in response to informal feedback often resulted in  useful regulatory changes. These agencies’ reviews incorporated factors  identified by the agency as well as ones that were requirements in  mandatory reviews. For example, DOL’s OSHA and EBSA selected  regulations for review based upon criteria that they independently  identified and selection criteria identified by Section 610 requirements.  They also incorporated review factors listed in Section 610 requirements  into a broader set of evaluative factors considered during their  discretionary reviews, including assessing: (1) whether the regulation  overlaps, duplicates, or conflicts with other federal statutes or rule; and  (2) the nature of complaints against the regulation. As a result, they  reported that these reviews generated useful outcomes. Nonfederal parties  also indicated that reviews that focus on multiple review factors and  purposes are more useful than reviews that focus only one purpose, such  as only burden reduction or only enforcement and compliance or only one  factor, such as public comments.
Because agencies did not always document discretionary reviews that they  conducted, it is not possible to measure the actual frequency with which  they resulted in regulatory change. However, we observed that, for cases  where agencies reported modifications to regulations, these actions were  most often attributed to factors that agencies addressed at their own  discretion, such as technology changes, harmonization efforts, informal  public feedback, and petitions. For example, although EPA officials  reported that they have many mandatory regulatory review requirements,  our review of proposed or completed modifications to existing regulations  reported in the December 2006 Unified Agenda showed that 63 of the 64  modifications reported were attributed to reasons associated with  agencies’ own discretion. As illustrated in figure 4, other agencies within  our review had similar results.
Although agencies reported, and our analysis of the Unified Agenda  indicated, that agencies more often modify existing regulations for reasons  attributed to their own discretion, it is important to note that mandatory  reviews may serve other valuable purposes for Congress. Such reviews  may provide Congress with a means for ensuring that agencies conduct  reviews of regulations in policy areas that are affected by rapidly changing  science and technology and that agencies practice due diligence in  reviewing and addressing outdated, duplicative, or inconsistent  regulations. For example, Congress required FCC to conduct reviews of its  regulations that apply to the operation or activity of telecommunication  service providers to “determine whether any such regulation is no longer  necessary in the public interest as the result of meaningful economic  competition between providers of such service.”
Agencies’ officials reported that reviews often had useful outcomes other  than changes to regulations, such as changes or additions to guidance and  other related documents, decisions to conduct additional studies, and  validation that existing rules were working as planned. For example,  OSHA officials reported that, outside of regulatory changes, their reviews  have resulted in recommended changes to guidance and outreach  materials and/or the development of new materials or validation of the  effectiveness of existing rules. Our review of OMB’s regulatory reform  nominations process confirmed that at least four of OSHA’s reviews  conducted in response to OMB’s manufacturing reform initiative resulted  in changes to or implementation of final guidance or the development of a  regulatory report. We observed similar results from OMB’s regulatory  reform process for EPA. Similarly, DOT officials reported that their  reviews also often led to changes in guidance or in further studies, and our  examination of review results reported by DOT confirmed that this was  often the case. Moreover, all of the agencies within our review reported  that reviews have resulted in validating that specific regulations produced  the intended results.
section_title: Agencies and Nonfederal Parties Identified Barriers and Facilitators to the Conduct and Usefulness of Retrospective Reviews
paragraphs: Agencies’ officials reported that barriers to their ability to conduct and use  reviews included: (1) difficulty in devoting the time and staff resources  required for retrospective review requirements, (2) limitations on their  ability to obtain the information and data needed to conduct reviews, and  (3) constraints in their ability to modify some regulations without  additional legislative action, among other important factors. Both agencies  and nonfederal parties identified the lack of public participation in the  review process as a barrier to the usefulness of reviews. The nonfederal  parties also identified the lack of transparency in agency review processes  as a barrier to the usefulness of reviews. Agency officials and nonfederal  parties also suggested a number of practices that could facilitate  conducting and improving the usefulness of regulatory reviews, including:  (1) development of a prioritization process to facilitate agencies’ ability to  address time and resource barriers and allow them to target their efforts at  reviews of regulations that are more likely to need modifications, (2) pre- planning for regulatory reviews to aid agencies in identifying the data and  analysis methodology that they will need to conduct effective reviews, and  (3) utilizing independent parties to conduct the reviews to enhance the  review’s credibility and effectiveness, among other things. While there was  general consensus among federal and nonfederal parties on the major  facilitators and barriers, there were a few clear differences of opinions  between them regarding public participation and the extent to which  reviews should be conducted by independent parties. Because only a few  agencies track the costs associated with conducting their reviews, one  cannot identify the type and approach to retrospective review that may be  most cost effective. However, agency officials told us that the reviews  have resulted in cost savings to their agencies and to regulated parties, for  example by saving both the agency and the public the costs of repeatedly  dealing with petitions for change or waivers in response to difficulties  implementing particular regulatory provisions.
subsections: section_title: Time, Resources, and Information Were Among the Critical Barriers to Conducting Reviews
paragraphs: All of the agencies in our review reported that the lack of time and  resources are the most critical barriers to their ability to conduct reviews.  Specifically, they said that it is difficult to devote the time and staff  resources required to fulfill various retrospective review requirements  while carrying out other mission-critical activities. Agencies’ officials  reported that, consequently, they had to limit their retrospective review  activities during times when they were required to respond to other  legislative priorities. For example, officials from MSHA reported that they  conducted fewer reviews in 2006 because they were heavily engaged in  trying to implement the Mine Improvement and New Emergency Response  Act of 2006 (MINER Act), which Congress passed in response to mining  accidents that occurred in 2006. Prior to these events, MSHA was  engaged in soliciting a contractor to assist the agency in prioritizing its  retrospective review efforts. The officials reported that, because of the  need to develop regulations pursuant to the act, they stopped the process  of looking for a contractor, and conducted fewer reviews. Officials from  various agencies reported that retrospective reviews are the first activities  cut when agencies have to reprioritize based upon budget shortfalls. A  DOT official reported that, despite having high-level management support  for retrospective review activities, the department has still experienced  funding limitations that have affected their ability to conduct retrospective  review activities. Our examination of agency documents confirmed that  several agencies indicated that they did not complete all of the reviews  that they planned and scheduled for some years within the scope of our  review because sufficient resources were not available. In one example,  we found that FAA delayed conducting any planned reviews for an  extended period because, as reported in the Unified Agenda, they did not  have the resources to conduct them. Many of the agencies in our review  did not track the costs (usually identified in terms of full-time equivalent  (FTE) staff resources) associated with their reviews; therefore, they could  not quantify the costs of conducting reviews.
section_title: Information and Data Limitations Present Challenges to the Conduct of Retrospective Reviews
paragraphs: Most agencies’ officials reported that they lack the information and data  needed to conduct reviews. Officials reported that a major data barrier to  conducting effective reviews is the lack of baseline data for assessing  regulations that they promulgated many years ago. Because of this lack of  data, agencies are unable to accurately measure the progress or true effect  of those regulations. Similar data collection issues were also identified by  agencies in the Eisner and Kaleta study published in 1996, which  concluded that, in order to improve reviews for the future, agencies should  collect data to establish a baseline for measuring whether a regulation is  achieving its goal, and identify sources for obtaining data on ongoing  performance.
Agencies and nonfederal parties also considered PRA requirements to be a  potential limiting factor in agencies’ ability to collect sufficient data to  assess their regulations. For example, EPA officials reported that  obtaining data was one of the biggest challenges the Office of Water faced  in conducting its reviews of the effluent guideline and pretreatment  standard under the Clean Water Act, and that as a result the Office of  Water was hindered or unable to perform some analyses. According to the  officials, while EPA has the authority to collect such data, the PRA  requirements and associated information collection review approval  process take more time to complete than the Office of Water’s mandated  schedule for annual reviews of the effluent guideline and pretreatment  standard allows. While one nonfederal party did not agree that PRA  restrictions posed a significant barrier to conducting reviews, agencies  and nonfederal parties generally agreed that the act was an important  consideration in agency data collection. However, while agencies  identified the potential limitations of PRA, it is important to recognize that  PRA established standards and an approval process to ensure that  agencies’ information collections minimize the federal paperwork burden  on the public, among other purposes.
In general, data collection appeared to be an important factor that either  hindered or facilitated reviews. Some of the agencies in our review that  promulgate safety regulations, such as CPSC, NHTSA, and those within  DOJ, reported that having sufficient access to established sources of  safety data, such as death certificates or hospital databases on deaths and  injuries related to products, greatly facilitated their ability to conduct  retrospective reviews of their regulations. Finally, agencies also reported  facing limits on their ability to obtain data on their regulations because of  the length of time it takes to see the impact of some regulations and the  scarcity of data related to areas that they regulate. Nonfederal parties also  cited this data limitation as a challenge to agency reviews.
section_title: Barriers to the Usefulness of Reviews Included Overlapping and Generic Schedules and Review Factors, Scope, Statutory Limitations, Limited Public Participation, and Transparency
subsections: section_title: Overlapping Schedules and Review Factors
paragraphs: To make efficient use of their time and resources, various agency officials  said that they consider all relevant factors, including effectiveness and  burden reduction, whenever they review an existing regulation. Therefore,  when reviews that have predetermined or generic schedules and review  factors (such as 10-year Section 610 reviews) arise, the agency might have  already reviewed and potentially modified the regulation one or more  times, based upon the same factors outlined in Section 610. The officials  reported that, although the subsequent predetermined reviews are often  duplicative and less productive, they nevertheless expend the time and  resources needed to conduct the reviews in order to comply with statutory  requirements. However, they reported that these reviews were generally  less useful than reviews that were prompted because of informal industry  and public feedback, petitions, changes in the market or technology, and  other reasons. Furthermore, agencies expressed concerns about whether  predetermined schedules may conflict with other priorities. DOT  acknowledged this issue even as it was establishing an agency policy to  require retrospective reviews. In response to a public suggestion that DOT  conduct reviews based upon a regular predetermined schedule, the agency  cautioned that arbitrary schedules might mean delaying other, more  important regulatory activities.
As examples of predetermined reviews that may be duplicative or  unproductive, officials from agencies within DOT, USDA, and DOL  reported that the regulations that most often apply to their industries may  need review sooner than the 10-year mark prescribed by Section 610. To  be responsive to the regulated community, the agencies regularly review  their regulations in response to public feedback, industry and technology  changes, and petitions, among other things, and make necessary changes  before a Section 610 review would be required. Our assessment of reviews  listed in the Unified Agenda confirmed that agencies often noted that they  had not made changes because of their Section 610 reviews, but had  previously made changes to these regulations because of factors that  previously emerged. For example, USDA’s AMS reported completing 11  mandated Section 610 reviews since 2001, which resulted in no regulatory  changes. For 9 of these reviews, the related published Section 610 reports  stated that AMS made no changes to the regulations because they were  modified “numerous times” in advance of the 10-year Section 610 review to  respond to changes in economic and other emerging conditions affecting  the industry.
Similar to agency views on timing, views by an OMB official and some  nonfederal parties indicated that the period immediately after an agency  promulgates a rule may be a critical time for agencies to review certain  types of regulations, in part because once the regulated community invests  the resources to comply with the regulations and integrates them into their  operations, they are less likely to support subsequent changes to the  regulation. In addition, the immediate effects of certain types of  regulations, such as economic incentive regulations, may be more  apparent and changes, if needed, can be brought about sooner.  Nonfederal parties reported that this may be especially important during  the time that regulated entities are facing challenges with the  implementation of a regulation. Some of these commenters noted that  such immediate reviews might be especially appropriate for rules that  have a high profile, are controversial, or involve a higher degree of  uncertainty than usual.
Two agencies within our review that had predetermined deadlines that are  set only a few years apart also reported that these schedules affected their  ability to produce more useful reviews. The officials reported that they do  not have enough time to effectively complete the reviews prior to  beginning another review. For example, EPA and FCC both stated that  agency-specific review requirements to conduct reviews of their  regulations every few years make it difficult for the agencies because  either the agencies do not have enough time to effectively gather data for  the reviews or do not have enough time to observe new effects of the  regulation between reviews. As a result, the agencies may be doing a less  comprehensive job in conducting the reviews and have more difficulty in  meeting their review deadlines.
For requirements that specify a predetermined schedule for conducting  reviews, agencies also identified, as a potential barrier, the lack of clarity  on when to “start the clock” for regulations that have been amended over  time. For example, as previously mentioned, in order to satisfy Section 610  requirements, DOT initiated an extensive process for reviewing its  sections of the CFR every year. The agency’s officials reported that they  adopted this extensive approach because they were unable to determine  whether to review a regulation 10 years after its promulgation or 10 years  after its last modification. Other agencies included in our review did not  take this approach to meeting Section 610 requirements. Similarly, in our  1999 report on RFA, we reported that agencies’ varying interpretations of  Section 610 requirements affected when they conducted reviews.
While agencies’ officials reported that predetermined schedules can  sometimes be ineffective, it is important to note that such schedules can  also help ensure that reviews occur. Specifically, some parties have noted  that a benefit of prespecifying the timing of reviews is that this provides  Congress with a way to force agencies to periodically reexamine certain  regulations.
In general, as illustrated in table 3, our review of the timing of reviews and  the evaluative factors that agencies are supposed to assess in those  reviews revealed that there is considerable overlap in the various  mandatory and discretionary review requirements.
Various agencies identified scoping issues as a barrier to the usefulness of  reviews. Agencies’ officials reported significant delays in completing  reviews and making timely modifications, as well as obtaining meaningful  input in reviews that involved multiple regulations as the unit of analysis.  Some agencies, such as DOL’s MSHA, reported experiencing delays up to  16 years in completing a review because they scoped their review too  broadly. Specifically, MSHA officials reported that, during a  comprehensive review of their ventilation standards, the scope of the  review increased due to input from other departmental agencies. Because  of this input and the complexity of the rule itself, it took 16 years to  complete the modifications, resulting in a major rewrite of the ventilation  standards. In our assessment of this review, the resulting information was  not as timely as it otherwise could have been, and therefore may have  been less useful. Similarly, officials from other agencies reported that  scoping reviews too broadly also affected their ability to conduct  expedient reviews. Agencies’ officials suggested that having a narrow and  focused unit of analysis, such as a specific standard or regulation, is a  more effective approach to conducting reviews. Specifically, officials from  DOT and FDIC reported that, when they conducted narrowly defined  reviews, the public provided more meaningful input on their regulations.  Furthermore, one nonfederal party emphasized that, when agencies  choose to analyze a broad unit of analysis, such as an act, it is difficult for  the public to discern which regulations are doing well and which are not.  The positive effects of one regulation under the legislation can  overshadow the negative effects of other regulations. Therefore, the  performance assessment of the relevant regulations is less transparent  and, consequently, less useful.
section_title: Statutory Provisions
paragraphs: Agencies’ officials reported that statutory requirements are a major barrier  to modifying or eliminating regulations in response to retrospective  regulatory reviews because some regulations are aligned so closely with  specific statutory provisions. Therefore, the agencies may be constrained  in the extent to which they can modify such regulations without legislative  action. For example, officials from MSHA, FDIC, and SBA reported that  many of their regulations mirror their underlying statutes and cannot be  modified without statutory changes. During its retrospective reviews to  reduce burden, FDIC along with other banking agencies within the FFIEC,  identified 180 financial regulations that would require legislative action to  revise. Similarly, in our 1999 report on regulatory burden, we found that  agencies often had no discretion, because of statutory provisions, when  they imposed requirements that businesses reported as most  burdensome. One approach taken by FDIC to address this issue was to  identify regulations that required legislative action in their review process  and to coordinate with Congress to address these potential regulatory  changes. Because of this approach, Congress is actively involved in FDIC’s  regulatory burden relief efforts and has passed changes in legislation to  provide various forms of burden relief to the financial sector.
section_title: Limited Public Participation
paragraphs: Agencies and nonfederal parties identified the lack of public participation  in the review process as a barrier to the usefulness of reviews. Agencies  stated that despite extensive outreach efforts to solicit public input, they  receive very little participation from the public in the review process,  which hinders the quality of the reviews. Almost all of the agencies in our  review reported actively soliciting public input into their formal and  informal review processes. They reported using public forums, and  industry meetings, among other things for soliciting input into their  discretionary reviews, and primarily using the Federal Register and  Unified Agenda for soliciting public input for their mandatory reviews.  For example, USDA officials reported conducting referenda of growers to  establish or amend AMS marketing orders, and CPSC officials reported  regularly meeting with standard-setting consensus bodies, consumer  groups, and regulated entities to obtain feedback on their regulations.  Other agencies reported holding regular conferences, a forum, or other  public meetings. However, most agencies reported primarily using the  Unified Agenda and Federal Register to solicit public comments on  mandatory reviews, such as Section 610 reviews. Despite these efforts,  agency officials reported receiving very little public input on their  mandatory reviews.
Nonfederal parties we interviewed were also concerned about the lack of  public participation in the retrospective review process and its impact on  the quality of agency data used in reviews. However, these nonfederal  parties questioned the adequacy and effectiveness of agencies’ outreach  efforts. Specifically, 7 of the 11 nonfederal parties cautioned that the  Federal Register and Unified Agenda are not sufficiently effective tools  for informing the public about agency retrospective review activities. In  addition, most of the nonfederal parties we interviewed were unaware of  the extent to which agencies conducted reviews under their own  discretion, and most of those parties reported that they were not aware of  the outreach efforts agencies are making to obtain input for these reviews.  Limited public participation in some review activities was cited by both  agencies and nonfederal parties as a barrier to producing quality reviews,  in part because agencies need the public to provide information on the  regulations’ effects. Both agency officials and nonfederal parties identified  methods for improving communication, including using agency Web sites,  e-mail listserves, or other Web-based technologies (such as Web forums),  among other things.
section_title: Shortcomings in Transparency
paragraphs: Nonfederal parties identified the lack of transparency in agency review  processes, results, and related follow-up activities as a barrier to the  usefulness of reviews to the public. Nonfederal parties were rarely aware  of the retrospective review activities reported to us by the agencies in our  review. Similarly, in our review of the Federal Register and Unified  Agenda, we were not always able to track retrospective review activities,  identify the outcome of the review, or link review results to subsequent  follow-up activities, including initiation of rulemaking to modify the rule.  As stated earlier, some mandatory reviews do not require public reporting  and many agencies did not consistently report the results of their  discretionary reviews, especially if the reviews resulted in no changes to  regulations. Some nonfederal parties told us that lack of transparency was  the primary reason for the lack of public participation in agencies’ review  processes.
section_title: Agencies and Nonfederal Parties Identified Lessons Learned and Practices for Improving Retrospective Reviews
paragraphs: Agencies and nonfederal parties identified pre-planning for regulatory  reviews as a practice that aids agencies in identifying the data and analysis  methodology that they need to conduct effective outcome-based  performance reviews. Some agencies within our review planned how they  would collect performance data on their regulations before or during the  promulgation of the relevant regulations or prior to the review. They cited  this technique as a method for reducing data collection barriers. For  example, DOT’s NHTSA was an agency that OMB officials and nonfederal  parties identified as appearing to conduct effective retrospective reviews  of its regulations. NHTSA officials reported to us that, to conduct effective  reviews, they plan for how they will review their regulations even before  they issue them. Prior research on regulatory reviews also cited the need  for agencies to set a baseline for their data analysis, in order to conduct  effective reviews. In addition, we have long advocated that agencies take  an active approach to measuring the performance of agency activities.  Furthermore, we observed that pre-planning for data collection could  address some challenges that agencies reported facing with PRA data  collection requirements, such as the length of time required to obtain  approval.
Agencies reported that prioritizing which regulations to review facilitated  the conduct of and improved usefulness of their reviews. Agencies that  developed review programs with detailed processes for prioritizing which  regulations to review reported that this prioritization facilitated their  ability to address time and resource barriers to conducting reviews and  allowed them to target their efforts at more useful reviews of regulations  that were likely to need modifications. As previously mentioned, DOL’s  EBSA and CPSC developed detailed prioritization processes that allowed  officials to identify which regulations were most in need of review and to  plan for conducting those reviews. Furthermore, this process allowed  CPSC to prospectively budget for its reviews and to identify the number of  substantive reviews per year that the agency could effectively conduct,  while meeting its other agency priorities. Officials from both agencies  reported that their prioritization processes allowed them to focus on the  most useful retrospective review activities, which identified important  regulatory changes. Nonfederal parties that we interviewed also asserted  that it is not necessary or even desirable for agencies to expend their time  and resources reviewing all of their regulations. Instead, they reported that  it would be more efficient and valuable to both agencies and the public for  agencies to conduct substantive reviews of a small number of regulations  that agencies and the public identify as needing attention. Nonfederal  parties and agency officials suggested that factors that agencies should  consider when prioritizing their review activities could include economic  impact, risk, public feedback, and length of time since the last review of  the regulation, among other things.
Nonfederal regulatory parties believed that reviews would be more  credible and effective if the parties that conduct them were independent.  For example, two different parties who we interviewed said that EPA’s  first report in response to Section 812 under the Clean Air Act could have  been improved by involving independent analysts. However, they  recognized that it is important to include input from those who were  involved in the day-to-day implementation of the regulation and were  responsible for producing initial benefit-cost estimates for the regulations.  Almost all of the nonfederal parties that we interviewed expressed  concern that agency officials who promulgated and implemented  regulations may be the same officials who are responsible for evaluating  the performance of these regulations. Although the nonfederal parties  acknowledged that it is important for officials with critical knowledge  about the program to be involved with providing input into the review,  they were concerned that officials placed in this position may not be as  objective as others may be. Nonfederal parties also expressed concerns  about agencies’ capacity to conduct certain types of analyses for their  reviews, such as benefit-cost assessments. The nonfederal parties  suggested that agencies could consider having an independent body like  another agency, Inspector General, or a centralized office within the  agency conduct the reviews. During our review, agencies’ officials  reported that they sometimes contract out their reviews if they do not  have the expertise needed to conduct the analyses. However, during a  discussion of this issue at our joint agency exit meeting, agency officials  pointed out the difficulty in finding a knowledgeable independent review  body to conduct retrospective reviews, and they noted that even  contracted reviewers may be considered less independent, because they  are paid by the agency to conduct the study.
Agencies and nonfederal regulatory parties agreed that high-level  management support in the review process is important to the successful  implementation of not only individual reviews but also to sustaining the  agency’s commitment to a review program and following up on review  results. As an example, officials from FDIC credited the accomplishments  of their review program largely to the support of high-level managers who  headed the FFIEC effort to reduce regulatory burden on financial  institutions. Officials reported that the leadership of the Director of the  Office of Thrift Supervision, who chaired the FFIEC effort, helped to  catapult support for reviews at all of the FFIEC agencies, including FDIC,  and helped to free up resources to conduct reviews at these agencies.  Almost all of the selected agencies reported involving some high-level  management attention in their reviews, but where and how they used this  involvement varied. For example, while almost all of the agencies reported  involving high-level management attention in decision-making processes  that resulted from reviews, CPSC and EBSA’s review programs also  involved high-level managers early in their processes, in order to  determine which regulations to review. Overall, agencies and nonfederal  parties indicated that having high-level management attention is important  to obtaining and sustaining the resources needed to conduct reviews and  the credibility of agency reviews.
According to agency officials from DOT, DOL, SBA, and FDIC, they  learned that grouping related regulations together when conducting  reviews is a technique that more often generated meaningful comments  and suggestions from the public. For example, officials from FDIC stated  that categorizing regulations for review and soliciting input over an  extended time period proved to be a more effective way of receiving  public input. They reported that placing regulations into smaller groups  and soliciting feedback on these categories separately over a 3-year period  helped the members of the FFIEC to avoid overwhelming the public with  the regulatory reviews, and allowed the agencies to receive more  thoughtful participation and input. SBA officials reported reviewing  related regulations together because a change to one rule can have an  impact on the related rules. Similarly, a DOT official reported that  grouping similar regulations together to solicit public input was an  effective technique for FAA because the agency regulates a broad policy  area. FAA received 1800 suggestions for regulatory changes based upon  one such review. However, the official cautioned that while grouping  regulations is an effective technique to obtaining useful public input,  defining the categories too broadly can lead to an effort that is too  intensive. In addition, the practice may be less convenient and practical  for agencies that write very specific standards, such as NHTSA. For these  agencies it may be more effective to pick related characteristics of rules in  order to group regulations to review.
Nonfederal parties suggested that agencies need to be more aware of the  different audiences that might be interested in their reviews, and target the  level of detail and type of product used to report the results to meet the  needs of these various audiences. For example, a product that focuses on  specific details of implementing a regulation may be less useful to those  interested in the policy effects of a regulation, and vice versa. Further,  both agency officials and nonfederal parties identified methods for  improving communication, including better use of information technology  tools, such as agency Web sites, electronic docket systems, e-mail  listserves, Web-based forums, or other Web-based technologies.
section_title: Some Agencies Believe Retrospective Reviews Can Result in Cost Savings
paragraphs: Agencies have not estimated all of the costs and benefits associated with  conducting retrospective reviews, but they believe that retrospective  reviews have resulted in cost savings to their agencies. For example,  MSHA officials reported that their retrospective regulatory reviews related  to petitions for modification produce savings for the agency because the  reviews prompt the agency to review and modify regulations that are  heavily petitioned, which reduces costs associated with reviewing similar  petitions. They reported that these reviews also save the mining industry  from the costs associated with repeatedly filing petitions. In addition to  petition-related cost savings, agencies could save costs by reviewing and  eliminating regulations that are no longer useful. Therefore, agencies  could reduce costs associated with implementing and enforcing outdated  or unproductive regulations.
We found that only a few agencies track the costs associated with  conducting their reviews, so we were unable to identify which methods  are most cost effective. Some agency officials, such as those in MSHA,  reported that tracking direct costs associated with reviews is difficult  because reviews are conducted as part of the normal operation of the  agencies and in concert with other actions to fulfill the agencies’ missions.  However, some agencies like CPSC establish budgets for their reviews,  and track the associated costs. As a result, CPSC determined that  conducting about four regulatory reviews per year was a reasonable effort  for the associated expense to the agency. OSHA also tracks the costs  associated with its reviews. The agency’s officials told us that each of its  reviews typically requires 2/3 of a program analyst FTE in the Office of  Evaluations and Audit Analysis, about 1/5 of an attorney FTE in the Office  of the Solicitor, 1/2 FTE for the involvement of staff from other  directorates, and approximately $75,000 to $100,000 of contractor support  per review.
Although agencies did not always track the cost of their reviews, officials  reported that they know some reviews are not cost effective. For example,  a USDA official reported that, by nature, some regulations are set up by  the agency to be reviewed regularly. Therefore, externally imposed  reviews only duplicate this effort. An example of such reviews would be  those conducted for regulations that are consistently reviewed by industry  committees that are appointed by the Secretary of an agency. AMS  officials reported that industry committees appointed by the Secretary of  Agriculture oversee many of the agency’s regulations and, as one of their  main functions, regularly review AMS regulations to identify needed  changes. Therefore, regulations under the purview of these committees  are already constantly being reviewed and updated, and thus may benefit  less from a Section 610 review than other regulations.
section_title: Conclusions
paragraphs: Our review revealed that agencies are conducting more reviews, and a  greater variety of reviews, than is readily apparent, especially to the  public. To facilitate their reviews, agencies, to greater and lesser extents,  have been developing written procedures, processes, and standards to  guide how they select which rules to review, conduct analyses of those  rules, and report the results. Given the multiple purposes and uses of  reviews, we recognize that there is no “one size fits all” approach.  However, there are lessons to be learned from ongoing regulatory reviews  that could benefit both the agencies in our scope and others that conduct  retrospective regulatory reviews. Because agencies are attempting to find  ways to further develop and improve their retrospective review processes  (for example, establishing units that focus on retrospective reviews and  seeking assistance with establishing prioritization systems), identifying  ways to share promising practices could collectively improve agency  review activities. Feedback from agency officials and nonfederal parties,  as well as our own analysis, indicate that there are procedures and  practices that may be particularly helpful for improving the effectiveness  and transparency of retrospective review processes. For example,  agencies can be better prepared to undertake reviews if they have  identified what data will be needed to assess the effectiveness of a rule  before they start a review and, indeed, before they promulgate the rule. If  agencies fail to plan for how they will measure the performance of their  regulations, and what data they will need to do so, they may continue to be  limited in their ability to assess the effects of their regulations.
Given increasing budgetary constraints, both agency officials and  nonfederal parties emphasized the need to better prioritize agency review  activities, when possible, to more effectively use their limited resources.  Agency officials and nonfederal parties recognize that time and resources  are too limited to allow for a regular, systematic review of all of their  regulations, and that devoting excessive time and scarce resources to a  formal review of all of their regulations could result in insufficient  attention to other regulatory needs or statutory mandates. As we have  observed, some agencies are already using such prioritization processes.  Without a detailed prioritization system, agencies may not be able to  effectively target their reviews so that they devote resources to conducting  substantive and useful reviews of the regulations that need the most  attention.
Agencies and nonfederal parties also reported that reviews are more  credible and useful to all parties if agencies have assessed multiple review  factors in their analyses of the regulations, rather than relying on a single  factor, such as public comments. The failure of agencies to do this could  result in reviews that miss assessing crucial information that could provide  context to the results of the analysis, such as weighing the benefits against  the burdens of the regulation. Further, our assessment of the strengths and  limitations of agency reviews revealed that agencies could improve their  efforts to employ a standards-based approach to conducting discretionary  reviews. Agencies are inconsistently applying a standards-based approach  to conducting discretionary reviews. Applying a standards-based approach  could enhance the transparency and consistency of reviews.
Agencies’ reporting of reviews appears largely ineffective. None of the  nonfederal parties we contacted were aware of the extent of agency  retrospective review activities. This lack of awareness might be  attributable to two reasons. First, agencies typically did not report results  for discretionary reviews, which account for most of agencies’ review  activities. Therefore, the public cannot be expected to know about these  reviews. Second, when agencies do report on their activities, the mode and  content of these communications may not be effective. For example,  although we found that some agencies used multiple modes of  communication, for the most part agencies reported that they rely heavily  on the Federal Register. However, nonfederal parties indicated that  reliance on the Federal Register is not sufficient. Further, the content that  agencies do publish does not always provide adequate information about  the analysis and results of the reviews. Our own assessment showed that it  was sometimes difficult to determine the outcomes of the reviews or the  bases for the agencies’ conclusions. Some agencies have employed  multiple communication modes and provided detailed content in their  reports, but still report disappointing levels of public participation.  Therefore, it is clear that agencies need to continue to explore methods to  more effectively communicate and document information about their  reviews and the underlying analyses. According to agency officials and  nonfederal parties, such methods could include using agency Web sites,    e-mail listserves, or other Web-based technologies (such as Web forums).  When agencies do not effectively communicate the analysis and results of  their reviews, they miss the opportunity to obtain meaningful comments  that could affect the outcome of their reviews. Further, without showing  the underlying analysis of reviews, the agencies’ conclusions may lack  credibility.
Agencies and nonfederal parties also emphasized the importance of having  high-level support for sustaining agency retrospective review activities,  and increasing their credibility with the public. Without such attention,  agencies will face difficulties in making retrospective review a priority that  receives the resources necessary for conducting successful reviews.  Agencies provided specific examples that illustrated how high-level  management support helped to ensure that they followed through on the  results of regulatory reviews. Although agency officials cautioned that  even high-level management support might not be sufficient to overcome  all budgetary constraints, having such support may ensure that some  retrospective review activity will be sustained.
One of the most striking findings during our review was the disparity in  the perceived usefulness of mandatory versus discretionary regulatory  reviews. The agencies characterized the results of their discretionary  reviews as more productive and more likely to generate further action. A  primary reason for this appears to be that discretionary reviews that  address changes in technology, advances in science, informal agency  feedback, harmonization efforts, and petitions, among other things, may  be more closely attuned to addressing issues as they emerge. While  agencies’ officials reported that their discretionary reviews might be more  useful than the mandatory reviews, we can not definitively conclude which  reviews are most valuable. We did not assess the content and quality of  discretionary reviews, and could not have done so because they often  were not documented. Although the officials reported that the bulk of  their review activity is associated with discretionary reviews, they could  not provide evidence to show definitively that this was so or that  discretionary reviews more often generated useful outcomes. Further, one  cannot dismiss the value that Congress anticipated when establishing the  mandatory requirements for agencies to conduct reviews for particular  purposes and on particular schedules.
The predetermined time frames of mandatory reviews can both help and  hinder. On one hand, predetermined schedules are one means by which  Congress can force agencies to periodically reexamine certain regulations.  However, the timing for some mandatory reviews may either be too short  or overlap with other review requirements, making it more difficult for  agencies to produce meaningful analysis from their reviews. Conversely,  from the cursory information that agencies reported for some mandatory  reviews that have review periods as long as 10 years, it appears that  agencies may devote limited time and resources to conducting these  reviews, perhaps partly because the required timelines do not recognize  ongoing changes to regulations.
Further, the criteria used in mandatory and discretionary reviews may be  duplicative. In general, our review of the timing of reviews and the  evaluative factors that agencies are supposed to assess in those reviews  revealed that there is considerable overlap in the various mandatory and  discretionary review requirements. To make efficient use of their time and  resources, agency officials said that they consider all relevant factors,  including effectiveness and burden reduction, whenever they review an  existing regulation. Therefore, when there are duplicative review factors  (such as assessing whether the rule is still needed, overly burdensome, or  overlaps with other regulations), the agency might have already reviewed  and potentially modified the regulation one or more times based upon the  same factors. The officials reported that, although the subsequent reviews  are often duplicative and less productive, they nevertheless expend the  time and resources needed to conduct the reviews in order to comply with  statutory requirements.
Given the long-term fiscal imbalance facing the United States and other  significant trends and challenges, Congress and the executive branch need  to carefully consider how agencies use existing resources. In particular,  overlapping or duplicative reviews may strain limited agency resources. As  agencies face trade-offs in allocating these limited resources to conducting  mandatory and discretionary reviews, as well as conducting other mission-  critical activities, they have to make decisions about what activities will  produce the most benefit. In some cases, we observed that agencies like  FAA delayed conducting any planned reviews for an extended period  because they reported that they did not have the resources to conduct  them. Given the trade-offs that agencies face, it makes sense to consider  the appropriate mix of mandatory and discretionary reviews, and other  mission-critical activities, that agencies can and should conduct. More  specifically, our findings and analysis suggest that it may be useful to  revisit the scope and timing of some review requirements to see whether  there are opportunities to consolidate multiple requirements to enhance  their usefulness and make them more cost effective and easier to  implement. If the current state of review requirements remains unchanged,  agencies may continue to expend their limited time and resources on  conducting pro forma reviews that appear to produce less useful results.  Further, agencies may also continue to produce less useful results for  reviews that they rush to complete, as identified by EPA and FCC officials  who reported that their annual and/or biannual review requirements do  not provide enough time for them to most effectively complete their  reviews and/or observe new changes before starting a subsequent review.
While we believe that employing the lessons learned by agencies may  improve the effectiveness of their retrospective reviews, we acknowledge  that the review of regulations is only one of the tools that agencies will  need to fully understand the implications of their regulatory activities. In  order to fully assess the performance of regulatory activities, agencies will  need to consider the performance of the programs that implement their  regulations and the statutes that underlie the regulations. Considering any  of these elements in isolation will provide an incomplete picture of the  impact of regulations on the public. However, neglecting any of these  elements will have the same effect.
section_title: Recommendations for Executive Action
paragraphs: In order to ensure that agencies conduct effective and transparent  reviews, we recommend that both the Director of the Office of  Management and Budget, through the Administrator of the Office of  Information and Regulatory Affairs, and the Chief Counsel for Advocacy  take the following seven actions.
Specifically, we recommend that they develop guidance to regulatory  agencies to consider or incorporate into their policies, procedures, or  agency guidance documents that govern regulatory review activities the  following elements, where appropriate:  1.  Consideration, during the promulgation of certain new rules, of  whether and how they will measure the performance of the regulation,  including how and when they will collect, analyze, and report the data  needed to conduct a retrospective review. Such rules may include  significant rules, regulations that the agencies know will be subject to  mandatory review requirements, and any other regulations for which  the agency believes retrospective reviews may be appropriate.  2.  Prioritization of review activities based upon defined selection criteria.  These criteria could take into account factors such as the impact of the  rule; the length of time since its last review; whether changes to  technology, science, or the market have affected the rule; and whether  the agency has received substantial feedback regarding improvements  to the rule, among other factors relevant to the particular mission of  the agency.  3.  Specific review factors to be applied to the conduct of agencies’  analyses that include, but are not limited to, public input to regulatory  review decisions.  4.  Minimum standards for documenting and reporting all completed  review results. For reviews that included analysis, these minimal  standards should include making the analysis publicly available.  5.  Mechanisms to assess their current means of communicating review  results to the public and identify steps that could improve this  communication. Such steps could include considering whether the  agency could make better use of its agency Web site to communicate  reviews and results, establishing an e-mail listserve that alerts  interested parties about regulatory reviews and their results, or using  other Web-based technologies (such as Web forums) to solicit input  from stakeholders across the country.  6.  Steps to promote sustained management attention and support to help  ensure progress in institutionalizing agency regulatory review  initiatives.
We further recommend that, in light of overlapping and duplicative review  factors in statutorily mandated reviews and the difficulties identified by  agencies in their ability to conduct useful reviews with predetermined  time frames, the Administrator of OIRA and Chief Counsel for Advocacy  take the following step.  7.  Work with regulatory agencies to identify opportunities for Congress  to revise the timing and scope of existing regulatory review  requirements and/or consolidate existing requirements.
section_title: Matters for Congressional Consideration
paragraphs: In order to facilitate agencies’ conduct of effective and transparent  reviews, while maximizing their limited time and resources, Congress may  wish to consider authorizing a pilot program with selected agencies that  would allow the agencies to satisfy various retrospective review  requirements with similar review factors that apply to the same  regulations by conducting one review that is reported to all of the  appropriate relevant parties and oversight bodies.
section_title: Agency Comments
paragraphs: We provided a draft of this report to the Secretary of Agriculture, the  Attorney General, the Secretary of Labor, the Secretary of Transportation,  the Administrator of EPA, the Administrator of SBA, the Acting Chairman  of CPSC, the Chairman of FCC, the Chairman of FDIC, the Director of  OMB, and the Chief Counsel for Advocacy for their review and comment.
We received formal comments from the SBA Office of Advocacy; they  concurred with the recommendations and, as an attachment, provided a  copy of draft guidance that they developed in response to our  recommendations (see app. XII). The Office of Advocacy also suggested  that it would be more appropriate to direct the recommendations to the  Chief Counsel of Advocacy rather than the Administrator of SBA. Because  the Chief Counsel of Advocacy is the official who would need to act upon  these recommendations, we made the change.
OMB told us that they reviewed our draft report and had no comments. All  other agencies provided technical and editorial comments, which we  incorporated as appropriate. In its technical comments, DOT suggested  that we expand the recommendation for agencies to identify opportunities  for Congress to examine the timing and scope of existing requirements  and/or consolidate existing requirements, to include executive agency  mandated reviews. However, the focus of the recommendation is on  statutory requirements because they tended to have recurring and/or  predetermined review schedules. Therefore, we did not expand the  recommendation.
As we agreed with your office, unless you publicly announce the contents  of this report earlier, we plan no further distribution of it until 30 days  from the date of this letter. We will then send copies of this report to  interested congressional committees, the Secretary of Agriculture, the  Attorney General, the Secretary of Labor, the Secretary of Transportation,  the Administrator of EPA, the Administrator of SBA, the Acting Chairman  of CPSC, the Chairman of FCC, the Chairman of FDIC, the Director of  OMB, the Administrator of OIRA, and the Chief Counsel for Advocacy.  Copies of this report will also be available at no charge on our Web site at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-6806 or sciremj@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. Key contributors to this report are listed in appendix XIII.
section_title: Appendix I: Objectives, Scope and Methodology
paragraphs: To provide insights concerning how agencies assess existing regulations,  congressional requesters asked us to examine agencies’ implementation of  retrospective regulatory reviews and the results of such reviews.  Accordingly, for selected agencies, we are reporting on:  1.  the magnitude of retrospective review activity and type of  retrospective reviews agencies completed from calendar year 2001  through 2006, including the frequency, impetus (mandatory or  discretionary), and purposes of the reviews;  2.  the processes and standards that guide agencies’ planning, conduct,  and reporting on reviews, and the strengths and limitations of the  various review processes and requirements;  3.  the outcomes of reviews, including the perceived usefulness of the  reviews and how they affected subsequent regulatory activities; and  4.  the factors that appear to help or impede agencies in conducting or  using retrospective reviews, including which methods, if any, that  agencies and we identified as most cost-effective for conducting  reviews.
For purposes of this report, we generally use the term retrospective  reviews to mean any assessment of an existing regulation, primarily for  purposes of determining whether (1) the expected outcomes of the  regulation have been achieved; (2) the agency should retain, amend, or  rescind the regulation; and/or (3) the actual benefits and costs of the  implemented regulation correspond with estimates prepared at the time  the regulation was issued. We defined mandatory reviews as retrospective  reviews that agencies conducted in response to requirements in statutes,  executive orders, or executive branch directives. We defined discretionary  reviews as reviews that agencies undertook based upon their own  initiative.
subsections: section_title: Scope
paragraphs: For calendar years 2001 through 2006, we assessed the retrospective  review activities of nine agencies and their relevant subagencies. The nine  agencies included the Departments of Agriculture, Justice, Labor, and  Transportation; Consumer Product Safety Commission (CPSC);  Environmental Protection Agency (EPA); Federal Communications  Commission (FCC); Federal Deposit Insurance Corporation (FDIC); and  the Small Business Administration(SBA). The subagencies covered in  detail by our review included USDA’s Animal and Plant Health Inspection  Service, Agricultural Marketing Service, and Food Safety and Inspection  Service; Department of Justice’s Bureau of Alcohol, Tobacco, Firearms,  and Explosives; Department of Labor’s Employee Benefits Security  Administration, Occupational Safety and Health Administration, Mine  Safety and Health Administration, and Employment and Training  Administration; and the Department of Transportation’s Federal Aviation  Administration and National Highway Traffic Safety Administration.
We selected these agencies because they include Cabinet departments,  independent agencies, and independent regulatory agencies covering a  wide variety of regulatory activities in areas such as health, safety,  environmental, financial, and economic regulation. Further, we selected  these agencies because they were actively conducting regulatory reviews  or were responsible for responding to multiple review requirements. We  were not able to assess the activities of all regulatory agencies, due to time  and resource constraints, but given the diversity and volume of federal  regulation conducted by the nine selected agencies, we believe that the  results of our assessment should provide a reasonable characterization of  the variety of retrospective regulatory reviews and the issues associated  with their implementation. GAO’s Federal Rules Database, which is used  to compile information on all final rules, showed that the nine agencies  accounted for almost 60 percent of all final regulations published from  2001 through 2006. However, the volume and distribution of reviews  covered in this report are not generalizable to all regulatory reviews  governmentwide. To supplement our assessment of these agencies’  activities, we also solicited the perspectives of regulatory oversight  entities and nonfederal parties knowledgeable about regulatory issues,  such as the Office of Information and Regulatory Affairs within the Office  of Management and Budget, the Office of Advocacy within SBA, and 11  nonfederal parties that represented a variety of sectors (academia,  business, public advocacy, and state government).
section_title: Methodology
paragraphs: To address our first objective, we interviewed and obtained  documentation from agency officials as well as other knowledgeable  regulatory parties on agency retrospective reviews. We administered and  collected responses to a structured data collection instrument that  solicited information on agencies’ retrospective review activities and  lessons learned. We supplemented this data collection by obtaining  information from the Federal Register, Unified Agenda, and published  dockets and agency reports. We used information obtained to describe the  “types” of reviews that agencies conducted—in terms of impetus  (mandatory or discretionary) and purpose (for example, burden reduction  or effectiveness). We compared agency review activities in terms of  impetus and purpose because important differences can be seen in the  processes used, outcomes derived, and lessons learned, based upon these  characteristics, which we further analyze in objectives two through four.  Although we note that reviews can be described and compared using other  characteristics, such as policy area assessed in the review (such as health,  safety, or economic) or type of analyses conducted (such as economic  benefit-cost analysis, other quantitative, and qualitative), we believe our  selection of characteristics in describing the types of reviews conducted  was most useful and relevant for addressing our objectives.
To address our second objective, we interviewed and obtained  documentation from agency officials as well as other knowledgeable  regulatory parties on agency retrospective reviews. We collected  responses to the aforementioned structured data collection instrument  that solicited information on agencies’ retrospective review activities and  lessons learned. We supplemented this data collection by obtaining  information from the Federal Register, Unified Agenda, and published  dockets and agency reports. We also reviewed agency policies, executive  orders, and statutory requirements to identify policies and procedures that  guide the planning, conduct, and reporting of agencies’ reviews. Further,  to identify the strengths and limitations of agency review processes, we  assessed agencies’ use of three review and economic practices and  standards that are important to the effectiveness and transparency of  agency reviews, including the (1) use of a standards-based approach, (2)  incorporation of public involvement, and (3) documentation of review  processes and results. In prior work, we identified some overall strengths  or benefits associated with regulatory process initiatives, including:  increasing expectations regarding the analytical support for proposed  rules, encouraging and facilitating greater public participation in  rulemaking, and improving the transparency of the rulemaking process.  Because these strengths or benefits are also relevant and useful for  assessing agency retrospective review initiatives, we considered them in  our selection of assessment criteria for this review. Other practices that  could improve the effectiveness and transparency of reviews may exist  and could be considered when developing retrospective review processes.  However, we believe that the three practices that we assessed are among  the most important. While we did not assess whether agencies employed  these practices all the time, to the extent possible we did seek  documentation and evidence that they were applied. Further, while we  assessed whether agencies employed standards-based approaches in their  retrospective review processes—within the scope of our review—we did  not attempt to assess the quality of such standards. We compared the  strengths and limitations of review processes across agencies, types of  reviews, and phases of the review process. In our more detailed  assessment of a limited sample of retrospective reviews completed  between 2001 and 2006, we also evaluated the use of research and  economic practices and standards. The sample that we assessed was too  small to generalize to all agency retrospective reviews, but this assessment  illustrated some of the strengths and limitations that exist in the agencies  we reviewed.
To address the third objective, we interviewed and obtained  documentation from agency officials and collected responses on the  usefulness of various types of retrospective reviews using the structured  data collection instrument identified in objective one. To obtain the  perspectives of nonfederal parties on the usefulness of agency reviews, we  identified and interviewed 11 parties that represent a variety of sectors  (academic, business, public, advocacy, and state government) and points  of view.  The parties were selected based on their contributions to prior  GAO work on regulatory issues and our assessment of their recent  publications on regulatory issues. The opinions expressed by agency  officials and these nonfederal parties may be subjective and may not  capture the views of all regulatory agencies, experts, and stakeholders on  the usefulness of reviews. However, we believe that our selection  represents a reasonable range of knowledgeable perspectives on  retrospective reviews. We supplemented our data collection on the  outcomes of agency reviews by reviewing the Federal Register, Unified  Agenda, and published dockets and reports. For mandatory and  discretionary reviews, we identified the reported results of reviews,  including whether the review prompted any change to existing regulations.  We also synthesized and described the usefulness of different types of  reviews, as determined by agency officials and nonfederal parties  knowledgeable about regulatory issues.
To address the fourth objective, we interviewed and obtained  documentation from agency officials, collected responses to a structured  data collection instrument, and reviewed existing research on agency  regulatory review initiatives. Further, we solicited perspectives of the  selected oversight and nonfederal parties on the facilitating factors and  barriers to the usefulness of agency reviews. Based on our analysis of  agency responses and documentation, we described the lessons learned  from the different agencies, and the views of oversight and nonfederal  parties on facilitating and impeding practices. To supplement the lessons  identified and to identify the most prevalent and/or critical facilitators or  barriers for the conduct and usefulness of reviews, as well as options to  overcome any barriers identified, we hosted a joint agency exit  conference. During this joint exit conference, we discussed the collective  responses of agencies and nonfederal parties, and similarities and  differences in experiences and views. We had general consensus among  federal agencies on the points discussed during this exit conference and  report on areas where there was not consensus in agency and nonfederal  parties’ views. We conducted our work from May 2006 through April 2007  in accordance with generally accepted government auditing standards.
section_title: Appendix II: Department of Agriculture Retrospective Reviews
paragraphs: The three Department of Agriculture (USDA) agencies examined in this  study actively reviewed their existing regulations under both mandatory  and discretionary authorities. The Animal and Plant Health Inspection  Service (APHIS), the Agricultural Marketing Service (AMS), and the Food  Safety and Inspection Service (FSIS) conducted reviews to reduce burden  on small entities under Section 610. USDA conducted discretionary  reviews to respond to industry petitions or informal feedback, to meet  recommendations from committees, to address new risks in regulated  environments, or to update rules due to advances in technology or  scientific knowledge. The agencies use both centralized and decentralized  review processes that rely on the input of outside parties to inform their  reviews.
subsections: section_title: USDA Retrospective Reviews
paragraphs: The three USDA agencies examined in this study actively reviewed their  existing regulations under both mandatory and discretionary authorities,  with reviews conducted at their own discretion more common than  mandated reviews. For example, during the 2001 through 2006 period  covered in our review, APHIS reported conducting 18 Section 610 reviews  and completing rulemakings for 9, with 8 others currently in progress.  APHIS also reported that since 2001, it has completed a total of 139  regulatory reviews, which resulted in 139 rule modifications across 12  broad content areas. AMS officials reported initiating 19 and completing 11  Section 610 reviews since 2001. However, AMS also reported that it has  issued approximately 300 modifications to 30 regulations based on  interaction with Industry Committees between fiscal years 2002 and 2006.  In addition, AMS also reported that since 2001, the agency has conducted  18 independent assessments of its commodity promotion programs, as  required of AMS under 7 U.S.C. § 7401. FSIS reported initiating 1 Section  610 review since 2001; however during the same time period, the agency  has conducted 36 reviews of its rules as a result of industry petitions. The  agencies’ officials reported that discretionary reviews more often resulted  in regulatory changes. Our analysis of the December 2006 Unified Agenda  confirmed that most modifications to the department’s regulations were  attributed to reasons under USDA’s own discretion rather than because of  mandates. Of the 132 rule changes listed in the Unified Agenda, 113  resulted from decisions made at agency discretion while 19 of those  changes were the result of mandated actions.
section_title: USDA Retrospective Review Processes
paragraphs: The processes employed for review varied by agency, with AMS program  offices conducting reviews of their own regulations, APHIS program  offices conducting reviews in concert with centralized offices within the  agency, and centralized offices within the agency conducting FSIS  reviews. However, all three agencies relied on the input of regulated  communities to inform their processes. As an example of a centralized  approach: APHIS’ technical and policy program staff work with the  agency’s Policy and Program Development (PPD) unit to conduct reviews,  and PPD works with the Deputy Administrators for each regulatory  program to set regulatory priorities. The program staff that oversees the  regulation, on the other hand, conducts AMS reviews, in-house. All three  agencies reported that they rely on outside parties to inform their review  process. For example, AMS reported that the agency conducts periodic  referenda of regulated growers of fruit and vegetables to amend agency  marketing orders and to identify programs for discontinuance. APHIS  reported that its review decisions are influenced by ongoing discussions  with industry, state and tribal authorities, and foreign governments  regarding setting international trade standards. APHIS also reported that it  has acted on recommendations made by outside reviews of its programs  conducted by the National Plant Board and the National Association of  State Departments of Agriculture. FSIS reported that it holds industry  listening sessions and public meeting to inform its rulemaking and affect  the day-to-day implementation of regulations. Figure 5 depicts USDA’s  general process for regulatory review.
section_title: Appendix III: Department of Justice Retrospective Reviews
paragraphs: While the Department of Justice (DOJ) is not primarily a regulatory  agency, during the 2001 through 2006 period covered in our review, DOJ  component agencies have conducted reviews of their existing regulations  under both mandatory review requirements and under their own  discretionary authorities. Most DOJ reviews were discretionary and in  response to such drivers as changes in technology or feedback back from  regulated entities, among other factors. The three mandatory reviews  conducted by DOJ since 2001 were driven by separate statutory  requirements to review regulations or set enforceable standards for others  to follow. While DOJ has few formal processes or standards to guide the  planning, conduct, and reporting of its internally conducted discretionary  reviews, in the conduct of the one Section 610 review conducted by DOJ  and evaluated by GAO, statutory standards were followed.
subsections: section_title: DOJ Retrospective Review Activity
paragraphs: DOJ is not primarily a regulatory agency and officials reported that most  of its primary activities, including antiterrorism, investigation, and law  enforcement do not involve the department’s regulatory process. Officials  reported that few of the department’s regulations are subject to Section  610 review, and one official reported that regulatory review, as a whole, is  not a major priority within the agency, compared to its other functions.  However, since 2001 DOJ agencies reported completing at least 13 reviews  of existing regulations. Based on published documents in the Federal  Register or Unified Agenda, 10 of these reviews were conducted under  DOJ’s own discretion, while 3 reviews were in response to mandatory  review requirements or to comply with statutory requirements to revise  regulations.
The drivers for the discretionary reviews conducted by DOJ included  responding to changes in technology or feedback from regulated entities,  among other factors. For example, FBI officials reported that the Bureau  has reviewed and is revising a rule preventing the FBI from retaining or  exchanging the fingerprints and criminal history record information of  nonserious offenses in the FBI’s Fingerprint Identification Records  System. According to the proposed rule change resulting from this review,  the existing regulations were originally implemented in 1974 and based on  the data-processing capabilities of a manual record-keeping environment.
Officials reported that advances in information technology precipitated a  review of these regulations, which once revised, will enhance the FBI’s  search capability for fingerprint and criminal history background checks.  DOJ also cited feedback from regulated entities as an important driver of  discretionary reviews. DEA, for example, reported that the controlled  substance manufacturer and distributor industries requested that DEA  provide an electronic method to satisfy the legal requirements for ordering  Schedule I and II controlled substances, which previously could only be  ordered through a triplicate form issued by DEA. According to officials,  DEA reviewed its regulations and worked with industry to develop a pilot  program to update its system. After notice-and-comment rulemaking, DEA  published a Final Rule revising its regulations on April 1, 2005.
In addition to these reviews, ATF conducted five discretionary reviews  since 2001, including a reorganization of Title 27 in the transition of ATF  functions from the Department of the Treasury to DOJ after the creation of  the Department of Homeland Security. Additionally, OJP conducted two  discretionary reviews since 2001 and the BOP reported that it conducts  annual, ongoing reviews of its Policy Statements, many of which  correspond with its regulations in the CFR, to ensure that they are current.
GAO was able to identify three mandatory regulatory reviews completed  by DOJ since 2001, and the impetuses for these reviews varied. For  example, ATF in 1997 initiated a Section 610 review evaluating the impact  of changes to its fireworks storage and record-keeping requirements on  small entities. This review, concluded in a January 29, 2003, Federal  Register notice, certified that the revised rule will have a minimal  economic impact on the explosives industry, and will no longer have a  significant economic impact on a substantial number of small entities. The  review also identified other areas of concern to the public, precipitating  further actions. CRT conducted a review pursuant to Executive Order  12250, which requires the Attorney General to establish and implement a  schedule for the review of executive branch agencies’ regulations  implementing various federal nondiscrimination laws, including the Civil  Rights Act of 1964, among others. According to officials, this “Cureton  Review Project” included an evaluation of the regulations of 23 agencies,  including DOJ, which resulted in clarified statutory language to promote  consistent compliance with the various nondiscrimination statutes. In a  third review, CRT published an Advanced Notice of Proposed Rulemaking  (ANPRM) to update regulations implementing Title II and Title III of the  Americans with Disabilities Act of 1990 (ADA), including the ADA  Standards for Accessible Design. According to the ANPRM, the ADA  requires DOJ to adopt accessibility standards that are ‘‘consistent with the  minimum guidelines and requirements issued by the Architectural and  Transportation Barriers Compliance Board,” which were revised in July  2004. DOJ has also reported that it may conduct a Regulatory Impact  Analysis on the revised ADA standards, including a benefit-cost analysis  pursuant to Executive Order 12866, OMB Circular A–4, and the Regulatory  Flexibility Act.
section_title: DOJ Review Process
paragraphs: Department officials stated that much of DOJ’s regulatory review process  was “informally” structured, and without formal procedures and  standards. Professional judgment, officials stated, was used in some cases  in lieu of documented practices. However, a GAO evaluation of the recent  ATF Explosive Materials in the Fireworks Industry review indicates that  DOJ followed the statutorily defined process for its completion. As  required by Section 610, the review must describe (a) the continued need  for the rule; (b) the nature of complaints or comments received  concerning the rule from the public; (c) the complexity of the rule; (d) the  extent to which the rule overlaps, duplicates, or conflicts with other  federal rules and, to the extent feasible, with state and local governmental  rules; and (e) the length of time since the rule has been evaluated or the  degree to which technology, economic conditions, or other factors have  changed in the area affected by the rule. GAO’s evaluation of this  proceeding concluded that ATF addressed the requirements for  responding to public comments, complaints, and the rule’s complexity.  ATF’s analysis was primarily in response to public comments and a review  of its own experience implementing the rule. In a few cases, ATF  responded to comments by referencing published experts’ opinions and  scientific tests. However, ATF provided no overall analysis of the cost of  these storage regulations or of their effectiveness in promoting public  safety, or law enforcement’s ability to trace fireworks to their  manufacturer—a specific desired outcome referred to in the notice.  Figure 6 depicts the general process for regulatory review in one ATF  Section 610 review.
section_title: Appendix IV: Department of Labor Retrospective Reviews
paragraphs: During the 2001 through 2006 period covered in our review, agencies  within the Department of Labor (DOL) have actively reviewed their  existing regulations in response to both mandatory and discretionary  drivers. Specifically, the Employee Benefits Security Administration  (EBSA), Occupational Safety and Health Administration (OSHA), Mine  Safety and Health Administration (MSHA), and Employment and Training  Administration (ETA) have conducted various retrospective reviews of  their regulations. The types of reviews—in terms of impetus and  purpose—outcomes of reviews and processes used to conduct the reviews  varied among the agencies. Specifically, while EBSA has established a  formal and documented regulatory review program, OSHA, MSHA, and  ETA have somewhat less formal review programs, but MSHA and ETA  were in the process of developing more standardized processes.  Furthermore, while all of the agencies reported that their discretionary  reviews more often resulted in subsequent regulatory action, the outcomes  of mandatory reviews varied slightly among the agencies.
subsections: section_title: DOL Retrospective Review Activity
paragraphs: All of the DOL agencies within our review reported actively conducting  reviews of their regulations. However, the types of reviews—in terms of  impetus and purpose—and outcomes of reviews varied slightly among the  agencies. All of the DOL agencies reported that they conducted ongoing  reviews of their regulations, at their own discretion. However, two of the  agencies—OSHA and EBSA—also incorporated requirements from  mandatory reviews into these discretionary reviews. Furthermore, EBSA  conducts its discretionary reviews more formally as part of its Regulatory  Review Program. According to documentation that we reviewed on this  program, EBSA formally conducted reviews of its existing regulations in  response to specific developments and/or changes in the administration of  group health, pension, or other employee benefit programs, changes in  technology and industries, and legislation. EBSA also reviewed regulations  in response to identified enforcement problems or the need to further the  agency’s compliance assistance efforts through improved guidance.  Furthermore, the review program incorporates Section 610 reviews as part  of the program. While OSHA did not have a program that was as  formalized and documented as EBSA, the officials reported and our review  of their analyses confirmed that the agency also incorporated Section 610  criteria into broader review initiatives that the agency undertook to  address informal feedback from industry, stakeholders, and staff. MSHA  and ETA also reported initiating reviews in response to either stakeholder  input, technology or policy updates, petitions, or internal identification of  needed rule changes. However, the agencies’ officials reported that they  have not conducted any Section 610 reviews (which focus on burden  reduction) during the period covered in our review because they have not  had any regulations within the last 10 years that had a SEISNOSE effect.
Outcomes of reviews varied slightly among the agencies. While it was not  possible to account for all of the reviews conducted by all of the agencies  because the agencies did not document some informal reviews,  collectively the agencies reported completing at least 60 reviews since  2001. According to EBSA documentation, the agency completed at least 7  of its 13 formal retrospective reviews, including 4 Section 610 reviews. All  of the discretionary reviews resulted in subsequent regulatory changes,  including changes to the regulation, guidance, or related materials. None  of EBSA’s Section 610 reviews resulted in regulatory changes. OSHA  completed 4 reviews in response to both discretionary and Section 610  requirements which resulted in regulatory changes or changes to guidance  documents or related materials. According to OSHA documentation, 2 of  their completed Section 610 reviews and 2 of their Standards Improvement  Project Reviews recommended regulatory changes, including clarifications  to standards or additional outreach or compliance assistance materials.  MSHA officials reported engaging in a 2004 MSHA Strategic Initiative  Review (a review of all Title 30 CFR regulations) and a review conducted  according to an MSHA initiative to improve and eliminate regulations that  were frequently the subject of petitions for modification. Both of these  reviews resulted in changes to regulations. ETA officials reported that, in  2002, the agency conducted a regulatory cleanup initiative that resulted in  updates to individual regulations and that ETA has updated individual  regulations when the agency’s program offices identified a need to do so  through their course of business. The agencies also reported making  regulatory changes based upon departmentwide regulatory cleanup  initiatives in 2002, and 2005/2006, which the department’s Office of the  Assistant Secretary for Policy spearheaded. Additionally, the department  completed 42 reviews in response to Office of Management and Budget  (OMB) regulatory reform nominations from 2001 to 2004, which resulted  in subsequent regulatory action.
section_title: DOL Retrospective Review Processes
paragraphs: The development of review processes for DOL agencies ranged from  processes that were documented and formal with established review  structures and procedures, to informal undocumented review processes  with structures and procedures that were still developing. For example,  EBSA established a formal review program that established a formal  structure for reviews, including identification of what resources (staff)  would be involved, criteria that the agency would use to select and assess  regulations, and the method for reporting results. While OSHA did not  have a documented formal review program, the agency described a  somewhat formal structure that it uses to conduct its reviews. Similarly,  ETA officials reported that they just recently established a more formal  structure for their review process, including the creation of a Regulations  Unit that will coordinate the development of regulations for ETA  legislative responsibilities and formalize regulatory procedures within the  agency. According to the officials, the Regulations Unit will establish time  frames and/or internal triggers for reviews to ensure the agency properly  reviews and updates regulations. However, they noted that, given the  recent establishment of this unit, it might take some time to implement  these procedures. MSHA did not appear to have a documented formal  review process or structure for its discretionary and mandatory reviews.  However, the agency reported that it had been engaged in soliciting  contractors to develop a more formal process for how to prioritize what  regulations that agency would review. Figures 7 and 8 illustrate an  example of the variation in the agencies’ review processes. To facilitate  sharing practices, in appendix XI we provide a more detailed description  of practices within EBSA’s review process, which was the most formalized  and documented review process that we examined within the scope of our  review.
section_title: Appendix V: Department of Transportation Retrospective Reviews
paragraphs: Between 2001 and 2006, Department of Transportation (DOT) agencies  within the scope of our evaluation actively reviewed their existing  regulations under both mandatory and discretionary authorities. The  mandatory reviews conducted by DOT agencies addressed  governmentwide, departmentwide, and agency-specific review  requirements. DOT conducted discretionary reviews in response to formal  petitions and informal feedback from the public and in response to  accidents or similar events and changes in specific industries,  technologies, or underlying standards. Additionally, DOT conducted  reviews in response to Office of Management Budget (OMB) regulatory  reform initiatives as well as a stand-alone initiative to review all rules  under the department’s authority. DOT has written policies and  procedures guiding the planning, conduct, and reporting of reviews. While  review processes may vary somewhat within DOT agencies, overall these  agencies follow DOT guidelines in the conduct of their reviews.
subsections: section_title: DOT Retrospective Review Activity
paragraphs: DOT has conducted a number of initiatives to systematically review  existing regulations to comply with federal mandates and DOT’s own  policies and procedures for regulatory review. In order to satisfy Section  610 and other review requirements, DOT initiated a 10-year plan in 1998 to  systematically review some of its sections of the Code of Federal  Regulations every year, with the objective of reviewing all of its  regulations over a 10-year cycle. DOT also maintains a departmentwide  review requirement, instituted in 1979, to periodically review existing  regulations to determine whether they continue to meet the needs for  which they originally were designed or whether reviewed rules should be  revised or revoked. More recently, in 2005, acting under its own discretion,  DOT initiated and completed a special stand-alone regulatory review in  which the department sought public comment on all rules and regulations  under DOT’s authority. DOT also reviewed regulations in response to OMB  initiatives in 2001, 2002, and 2004, which solicited nominations from the  general public for federal regulations and guidance documents for reform.  The agency completed 61 reviews in response to these reform initiatives,  and the department took subsequent action on 43 of the regulations it  reviewed. Overall, during the 2001 through 2006 period covered in our  review, DOT has reported conducting over 400 reviews of existing  regulations to meet governmentwide review requirements, including those  under Executive Order 12866 on Regulatory Planning and Review, Section  610, and the Executive Memorandum of June 1, 1998, on Plain Language in  Government Writing.
In addition to reviews conducted under departmentwide requirements,  various agencies within DOT have reviewed regulations within the specific  statutes under their purview. For example, since 2001 FAA has reviewed  three regulations pursuant to requirements in the Federal Aviation  Reauthorization Act of 1996. According to agency officials, these reviews  included post implementation cost-benefit assessments of three, high-cost  FAA rules. FMCSA reported that it also reviews any regulation impacted  by the Motor Carrier Act of 1980; the Motor Carrier Safety Improvement  Act; and the Safe, Accountable, Flexible, Efficient Transportation Equity  Act: A Legacy for Users (SAFETEA-LU). Although not within the time  frame for this study, FTA announced in the December 2006 Unified  Agenda that it will undertake a review of its regulations to bring them into  conformity with the SAFETEA-LU statute.
In addition to these more formal regulatory review efforts, DOT officials  reported that the department also reviews its existing regulations at its  own discretion as a function of its daily, ongoing activities. According to  officials, such reviews are often the result of petitions from or  consultations with parties affected by DOT regulations or based on the  experience of agency staff members in light of changes in specific  industries, technologies, or underlying standards. DOT officials said that,  for some of their agencies, reviewing petitions for rulemaking or  regulatory waivers is the most productive way to obtain public input on a  review of that rule. An evaluation of NHTSA’s entries in DOT’s December  2005 Unified Agenda indicated 10 rule change proceedings in various  stages of completion which were the result of petitions from regulatory  stakeholders. NHTSA also reported that, since 2001, it has conducted 17  reviews of Federal Motor Vehicle Safety Standards (FMVSS), including a  few studies evaluating the benefits and costs of various standards. PHMSA  reported that the granting of numerous waivers of a regulation is a  particular signal that new technology or conditions may render that  regulation obsolete or in need of amendment.
section_title: DOT Retrospective Review Process
paragraphs: DOT has written policies and procedures guiding the planning, conduct,  and reporting of reviews. While the processes employed by DOT agencies  may vary somewhat, overall these agencies follow DOT guidelines in the  conduct of their reviews. For example, DOT’s Policies and Procedures  provide guidance for prioritizing regulations for review, including the  extent of complaints or suggestions received from the public; the degree to  which technology or economic factors have changed; and the length of  time since the regulations were last reviewed, among other factors. DOT’s  procedures also provide agencies with discretion in applying the  procedures. For example, NHTSA reported that it gives highest priority to  the regulations with the highest costs, potential benefits, and public  interest, while PHMSA reported that it gives highest priority to initiatives it  deems most likely to reduce risk and improve safety. Additionally, while  DOT officials reported that DOT considers OMB Circular A-4 on  “Regulatory Analysis” as a guide for cost/benefit analysis of regulatory  outcomes, FAA reported that it uses a set of flexible procedures  recommended by an outside consultant to conduct ex post evaluations of  some rules. With regard to public participation in the review process,  Appendix D to the department’s Unified Agenda announces the complete  schedule for all reviews, requests public comments for reviews in  progress, and reports the results of completed reviews and their results.  DOT agencies also pointed out that they regularly interact with  stakeholders, such as regulated industries, consumers, and other  interested parties to obtain feedback on regulations. For example, FAA  officials stated that the agency holds conferences with industry and  consumer groups to identify regulatory issues for review. In terms of the  reporting of review results, DOT publishes brief summaries of completed  reviews in Appendix D of its Unified Agenda. However, agencies may  report review results in other ways. For example, FMCSA documents the  results of its Section 610 reviews in an annual internal report, while  NHTSA publishes the technical reports of its reviews in the Federal  Register, requesting public comments on its determinations. Figure 9  depicts DOT’s general process for regulatory review.
section_title: Appendix VI: Consumer Product Safety Commission Retrospective Reviews
paragraphs: Since 2001, the Consumer Product Safety Commission (CPSC or the  Commission) systematically reviewed its regulations under its own  discretion, but has not conducted any mandatory reviews because none of  its rules triggered Section 610 or other mandatory review requirements.  Moreover, agency officials noted that because of its reliance on voluntary  consensus standards, the agency does not promulgate as many rules as  other regulatory agencies. However, the primary purpose of CPSC  discretionary reviews is to assess whether the regulations that CPSC  promulgates remain consistent with the objectives of the Commission. In  performing its reviews, CPSC has created systematic processes for the  planning, conduct, and reporting of its reviews. Through this process, the  Commission prospectively budgets for its reviews. Because CPSC’s review  program is so new, the agency has not completed most of the reviews that  it has initiated, but the Commission has proposed changes to at least two  existing regulations. In addition, the officials reported that their review  program has been useful to the Commission.
subsections: section_title: CPSC Retrospective Review Activity
paragraphs: CPSC actively conducted reviews of its existing regulations under its own  discretion. Specifically, the Commission implemented a pilot review  program in 2004, with annual follow-up efforts in 2005 and 2006, which  resulted in the initiation of 14 retrospective reviews. CPSC initiated this  review process partly because of an Office of Management and Budget  (OMB) Program Assessment Rating Tool (PART) recommendation that the  agency develop a plan to systematically review its current regulations to  ensure consistency among them in accomplishing program goals. The  primary purpose of CPSC reviews is to assess the degree to which the  regulations under review remain consistent with the Commission’s  program policies and program goals. CPSC also assesses whether it can  streamline regulations to minimize regulatory burdens, especially on small  entities. The officials reported that their review process is so new that they  have not yet fully completed it for all of the reviews that they have  initiated. However, they have completed at least 3 of their 14 initiated  reviews.
Officials reported that, while some of the regulations they reviewed did  not need a revision, they have proposed regulatory changes for two  regulations, including standards for flammability of clothing textiles and  surface flammability of carpets and rugs. They reported that their reviews  could focus on opportunities to either expand or streamline existing  regulations. Thus, their reviews could lead to increases or decreases in the  scope of CPSC regulations. As examples, CPSC officials reported that  during their review of their existing bicycle regulation they identified that  the regulation did not reflect new technology and materials, and therefore  needed to be modified and updated. Conversely, their review of their  cigarette lighter rule revealed that the agency needed to promote greater  compliance and more effective enforcement, which increased the agency’s  regulatory oversight. Table 8 provides additional detail on the CPSC  retrospective reviews.
section_title: CPSC Review Process
paragraphs: CPSC established a formal review program that prospectively budgets for  the substantive reviews that the agency will conduct. Officials reported  that they have conducted about four substantive reviews per year using  this process, while still managing other agency priorities. The process  consists of three phases, including: (1) prioritization and selection of  regulations to substantively review, (2) substantive review of the selected  regulations, and (3) reporting results to the Commissioners and the public,  for certain reviews. As part of this process, CPSC staff prioritize which  regulations need review by considering: (1) which rules have the oldest  effective dates, (2) which rules were adopted under various statutes under  CPSC’s authority, and (3) which rules staff identified as good candidates  for change (from their experience working with the regulation). As  resources allow, the agency selects one substantive regulation from each  of their statutes’ areas (with the exception of the Refrigerator Safety Act),  starting with their earliest regulations. As part of this prioritization  process, the agency considers input from CPSC’s technical staff and  outside groups. CPSC staff initiates substantive review of regulations that  the Commission chooses for review. In this process, the agency solicits  public comments using the Federal Register, assesses the comments  received, conducts an internal technical review of the regulation, and  reports the results to the Commissioners. The Commissioners make a  policy decision on actions the agency will take based upon staff  recommendations. If the agency decides to conduct a follow-on activity to  update a rule, it subsequently notifies the public via the Federal Register.  For rule reviews that result in Commission-approved projects for certain  rulemaking activities (such as developing revisions to a rule for  Commission consideration), CPSC makes the briefing packages available  on its Web site. Other rule reviews (such as reviews for which staff  suggests no action) are given to the Commissioners, but are not posted on  the Web site. Figure 10 illustrates the general review process.
section_title: Appendix VII: Environmental Protection Agency Retrospective Reviews
paragraphs: During the 2001 through 2006 period covered in our review, program  offices within Environmental Protection Agency (EPA) have conducted  numerous retrospective reviews of EPA existing regulations and  standards. The mix of reviews conducted by EPA—in terms of  authorities—varied across the agency, but the purposes of these reviews— effectiveness, efficiency, and burden reduction—were similar across the  agency. EPA’s retrospective review results provided three distinctive  outcomes. While the agency conducts many reviews under its mandates,  reviews conducted on its own discretion yielded more changes to existing  regulations than mandated reviews. The review processes within EPA’s  program offices, though different, typically shared similar elements in the  planning, conduct, and reporting of results. Overall, EPA reported that its  retrospective reviews have proven to be useful to the agency.
subsections: section_title: EPA Retrospective Review Activities
paragraphs: The Office of Air and Radiation (OAR), the Office of Prevention,  Pesticides, and Toxic Substance (OPPTS), the Office of Solid Waste and  Emergency Response (OSWER), and the Office of Water within EPA each  conduct mandatory retrospective reviews under their guiding statutes and  focus the reviews on what is stated in statute or developed by the agency.  Thus, the frequency of mandated reviews varies within EPA as well as the  program offices. For instance, the frequency of reviews required by the  Safe Drinking Water Act (SDWA), conducted by the Office of Water,  ranges from every 3 years to every 7 years, depending on the review  requirement, while the OAR is required to conduct reviews by the Clean  Air Act ranging from every 3 years to every 8 years. Mandated reviews,  such as those required by agency-specific statutes, mainly focused on  effectiveness, while Section 610 reviews and Office of Management and  Budget (OMB) Regulatory Reform Nominations were focused on burden  reduction. According to EPA officials, mandatory retrospective reviews  have generally resulted in limited or no changes to regulations, while  reviews conducted under discretionary authority usually resulted in more  changes. For instance, of the 14 Section 610 reviews conducted by the  program offices since 2001, only 1 resulted in change. Moreover, OAR  noted that most of its reviews validated the need for the regulation or  standard. However, EPA’s review of regulations in response to OMB’s  Manufacturing Regulatory Reform initiative resulted in 19 regulatory  changes and 19 nonregulatory actions, including the development of  regulatory guidance and reports. In addition, GAO’s review of EPA’s  December 2006 Unified Agenda entries also revealed that 63 out of 64  rules identified as changed or proposed for changes were the result of  decisions made under EPA’s discretionary authority. Though the use of  discretionary authority produced more rules changes, officials reported  that retrospective reviews, in general, were valuable in (1) determining  whether new information exists which indicates the need for revisions and  (2) enabling the agency to gain new insights about its analytical methods.  In addition, officials noted that retrospective reviews were useful in  determining whether the rule was working as intended and helping to  achieve the agency’s or statute’s goals.
section_title: EPA Review Process
paragraphs: EPA’s review process varied by program office and by review requirement;  however, most mandatory and discretionary reviews contained consistent  elements. The four EPA program offices included in our review perform  various functions of the agency that rarely overlap into other program  offices duties. For example, OAR exclusively oversees the air and  radiation protection activities of the agency, while the Office of Water  solely manages the agency’s water quality activities. These two offices  have different guiding statutes that require them to conduct reviews and,  within those statutes, processes are sometimes outlined for how the  agency should conduct the reviews. Therefore, the processes for these  program offices varied. However, three elements were similar across the  offices: these included formal or informal notification of the public;  involvement of the public in the conduct of the review mainly through the  request of public comments, science, risk, or policy assessments of the  regulation; and release of the results to the public primarily through the  Federal Register and the EPA Web site. In addition, mandatory and  discretionary regulatory reviews that were high profile in nature (e.g.,  because they were conducted in response to emergencies, were  contentious, or received heavy attention from the public, Congress, or  regulatory experts) had the aforementioned elements as well as high-level  management attention from the Assistant Administrator of the program  office or the EPA Administrator. For example, the review processes of the  mandatory National Ambient Air Quality Standards and the Lead and  Copper review, which was initiated after elevated levels of lead were  found in the District of Columbia, were defined, documented, and included  extensive public involvement and high-level management attention. Figure  11 illustrates the general review process for the different review drivers.
section_title: Appendix VIII: Federal Communications Commission Retrospective Reviews
paragraphs: The Federal Communications Commission (FCC or the Commission)  actively reviews its existing regulations to meet congressionally mandated  review requirements, and to respond to petitions from regulated entities  and changes in technology and market conditions, under its own  discretionary authority. While FCC’s retrospective review processes vary  depending on the review requirement the agency is addressing, FCC’s  biennial and quadrennial review processes provide opportunities for  public participation and transparency. According to FCC officials, the  frequency of the biennial review requirement presents staffing challenges  to the agency, while the 10-year requirement for the Section 610 review  presents a challenge to the usefulness of this review, as regulations may  have been previously modified under other requirements prior to the  review.
subsections: section_title: FCC Retrospective Review Activity
paragraphs: FCC actively reviews its existing regulations to meet congressionally  mandated review requirements and to respond to petitions from regulated  entities and changes in technology and market conditions under its own  discretionary authority. Under the Communications Act, as amended, the  Commission is subject to two agency-specific mandated reviews: (1) the  biennial regulatory review of FCC telecommunications rules, and (2) the  quadrennial regulatory review of the broadcast and media ownership  rules. FCC officials reported that these reviews are guided by the  deregulatory tenor of the Telecommunications Act, which instructed the  Commission to promote competition and reduce regulation in the  telecommunications and broadcast industries. The purpose of these  reviews is to identify rules no longer necessary in the public interest so  that they may be modified or repealed. In the 2002 biennial review, the  Commission conducted and reported 89 separate review analyses of its  telecommunications regulations and made more than 35 recommendations  to open proceedings to consider modifying or eliminating rules. The  Commission is also subject to the governmentwide review requirement to  minimize significant economic impact on small entities under Section 610.  FCC has initiated 3 multiyear Section 610 review projects (1999, 2002,  2005), plus 1 single-year review (2006), issuing public notices listing all  rules subject to Section 610 review. Officials pointed out that these  reviews rarely result in rulemaking proceedings and cited only one  proceeding which resulted in the elimination of obsolete rules as a result  of the Section 610 process.
In addition to these mandatory requirements, FCC officials reported that  the Commission reviews existing regulations at its own discretion in  response to rapid changes in technology and market conditions and to  petitions from regulated entities. A GAO analysis of the December 2006  Unified Agenda indicated that most of FCC’s proposed and final rule  changes for that year were the result of decisions made under FCC’s  discretionary authority. Of the 39 rule changes listed in the Unified  Agenda, 33 were the result of decisions made at the Commission’s own  discretion, while 6 of those changes were the results of mandated actions.  This informal analysis indicates that, in addition to its mandatory review  requirements, FCC does make efforts to review and amend regulations  under its own discretion.
section_title: FCC Review Process
paragraphs: The rule changes from the 2002 quadrennial review never went into effect. In 2004, the  U.S. Court of Appeals remanded back to FCC for further review its rules for cross-media  ownership, local television multiple ownership, and local radio multiple ownership  (Prometheus Radio vs. F.C.C., 373 F.3d 372 (3rd Cir. 2004)). Additionally, Congress  overturned FCC’s national television ownership rule which would have allowed a  broadcast network to own and operate local broadcast stations reaching 45 percent of U.S.  television households. Through the Consolidated Appropriations Act of 2004, Congress set  the national television ownership limit at 39 percent (Pub. L. No. 108-199, 118 Stat. 3, 100  (Jan. 23, 2004)). transparency. For example, in the 2002 biennial review, FCC Bureaus and  Offices issued public notices listing rules for review under their purview  and requesting comments regarding the continued necessity of rule parts  under review. The Bureaus and Offices published Staff Reports on the  FCC Web site summarizing public comments and making determinations  as to whether the Commission should open proceedings to modify or  eliminate any of the reviewed rules. The Commission released Notices of  Proposed Rulemaking, seeking further public comments. Officials  reported that if the Commission modifies or eliminates any regulations as  a result of its proceeding, that decision is announced in a rulemaking  order, which is published in the Federal Register. Similarly, in the 2006  quadrennial review (which was in process at the time this report was  written) the Commission released a Further Notice of Proposed  Rulemaking (FNPR) and posted a Web page providing background  information and hyperlinks to FCC documents relevant to the review. The  FNPR requests public comment on the media ownership rules and factual  data about their impact on competition, localism, and diversity. The  Commission reported that it will hold six public hearings in locations  around the country and make available for public comment 10 economic  studies commissioned by FCC on issues related to the media ownership  rules.
Despite the opportunities for public participation in these regulatory  reviews, the mandated structure of some review processes presents a  challenge to the usefulness of FCC reviews. For example, according to an  FCC official, the requirement to review the Commission’s  telecommunications rules every 2 years forces Bureau staff to be  constantly reviewing regulations. This official reported that the  quadrennial requirement is a more appropriate time period for review, as it  provides greater opportunity for regulatory changes to take hold.  Additionally, an official reported that too much time between reviews can  be problematic. For example, rules that require Section 610 review every  10 years may have been modified or previously reviewed as part of an  overlapping review requirement or as part of a discretionary review  occurring prior to the 10-year review requirement.
section_title: Appendix IX: Federal Deposit Insurance Corporation Retrospective Reviews
paragraphs: During the 2001 through 2006 period covered in our review, the Federal  Deposit Insurance Corporation (FDIC), has performed numerous  retrospective reviews of its existing regulations in response to mandatory  authorities such as Section 610 of the Regulatory Flexibility Act and the  Economic Growth Regulatory and Paperwork Reduction Act of 1996  (EGRPRA) and at its own discretion. The focus of FDIC’s reviews has  been on burden reduction, which is part of the agency’s strategic goals.  The process that FDIC used to plan, conduct, and report its reviews was  coordinated by a larger organizational body. The centralized review effort  helped to leverage the agencies’ resources and facilitate the regulatory  changes recommended as a result of the EGRPRA reviews.
subsections: section_title: FDIC Retrospective Reviews
paragraphs: FDIC, along with members of the Federal Financial Institutions  Examination Council (FFIEC) has examined 131 regulations under  EGRPRA. FDIC conducted two Section 610 reviews after 2001, but before  the initiation of the EGRPRA reviews in 2003. Because the EGRPRA  review affected almost all of FDIC’s regulations, the agency subsequently  included Section 610 reviews within the EGRPRA review effort. Also, the  agency has conducted discretionary reviews in response to petitions and  external emergencies, such as natural disasters. For instance, the agency  reported reviewing its regulations to reduce burden for businesses  affected by Hurricane Katrina. In doing so, the agency made 8 temporary  regulatory changes to ease the burden on affected entities. FDIC also  made changes to 4 regulatory areas, which included changes to 3  regulations, as a result of the EGRPRA reviews. Additionally, GAO’s  review of the December 2006 Unified Agenda, indicated FDIC made  changes to 5 regulations as a result of decisions under its own discretion  and 4 changes as result of mandates. FDIC and the other banking agencies  also worked with Congressional staff regarding legislative action as a  result of the EGRPRA reviews. For example, the agencies reviewed over  180 legislative initiatives for burden relief in 2005. Furthermore, the  agencies testified before the  Senate Banking Committee and House Financial Services Committee on a  variety of burden reduction measures and upon request, agency  representatives offered technical assistance in connection with the  development of legislation to reduce burden. Congress later passed and  the President signed the Financial Services Regulatory Relief Act of 2006  on October 13, 2006.
section_title: FDIC Retrospective Review Process
paragraphs: FDIC and other financial regulatory agencies that are members of the  FFIEC decided to use the FFIEC as the coordinating body for the  EGRPRA review process because the act affected all of the agencies and  the agencies wanted to: (1) establish a centralized process for selecting,  conducting, and reporting its reviews; and (2) leverage the expertise and  resources of all of the member agencies. EGRPRA required the agencies to  categorize their rules, solicit public comment, and publish the comments  in the Federal Register. The act also required the agencies to report to  Congress no later than 30 days after publishing the final summarized  comments in the Federal Register. The FFIEC established additional  processes for planning, conducting, and reporting of retrospective reviews  conducted under EGRPRA outside of these specified requirements, such  as providing 90 public comment periods, holding outreach meetings with  regulated entities as well as consumer groups across the United States,  and establishing a Web site dedicated to the EGRPRA reviews. Within all  of the processes developed by the FFIEC, a high level of management  attention was maintained. For instance, the Director of the Office of Thrift  Savings, who is also a member of FDIC’s Board of Directors, headed the  interagency effort. In this capacity, a political appointee was involved in  planning, conducting, and reporting the reviews. As illustrated by figure  13, the process involved interagency coordination and review activities  within each individual agency, including FDIC.
section_title: Appendix X: Small Business Administration Retrospective Reviews
paragraphs: During the 2001 through 2006 period covered in our review, the Small  Business Administration (SBA) has reviewed its existing regulations in  accordance with Section 610 of the Regulatory Flexibility Act and on it  own discretion. While the purpose of the Section 610 reviews was to  reduce burden, the purpose of every discretionary review was to increase  effectiveness. SBA had written procedures to plan, conduct, and report its  Section 610 reviews. However, the agency did not have written processes  to guide planning, conduct, and reporting of discretionary reviews.  Overall, SBA’s discretionary reviews have resulted more often in  regulatory changes than reviews mandated by statute.
subsections: section_title: SBA Retrospective Review Activities
paragraphs: Officials reported that SBA has conducted discretionary reviews based on  congressional interest or industry petitions. Specifically, officials from the  HUBZONE program indicated that their office receives attention from  congress about the workings of their regulations, thereby prompting them  to review their existing regulations. In addition, SBA’s Division of Size  Standards completed 27 reviews in response to industry petitions and  congressional requests. SBA also completed 4 Section 610 reviews in 2005.  While the purpose of the Section 610 reviews was to reduce burden,  officials from one division in SBA said that they focused many of their  retrospective reviews on examining the effectiveness of their regulations  by evaluating their progress on outcomes. However, they stated that  because some of their regulations are linked to the regulatory activity of  other agencies, they are not always able to achieve the intended outcome  of the regulation. Of the reviews conducted by SBA, discretionary reviews  yielded more changes to existing regulations than mandated reviews. For  instance, there were no changes made to the 4 Section 610 reviews  completed but there were 23 final or proposed changes to regulations in  response to industry petitions. In addition, GAO’s examination of SBA’s  December 2006 Unified Agenda entries indicated that 22 rule changes  were the result of the agency’s discretionary authority rather than  statutory mandates.
section_title: SBA Retrospective Review Process
paragraphs: SBA’s Section 610 Plan in the May 2006 Unified Agenda described  procedures for conducting Section 610 reviews. The plan specifies that  SBA will consider the factors identified in Section 610. The plans also  specifies that the conduct of the review will be performed by the program  office of jurisdiction, which entails reviewing any comments received from  the public, in consultation with the Office of General Counsel (OGC) and  the Office of Advocacy. The document notes that the program office may  contact associations that represent affected small entities in order to  obtain information on impacts of the rules. Although Section 610 does not  require agencies to report the results of the reviews, SBA reported its  results in the Unified Agenda.
Under SBA’s standard operating procedures each program office is  responsible for evaluating the adequacy and sufficiency of existing  regulations that fall within its assigned responsibilities. However,  according to the officials, the agency does not have a uniform way to plan,  conduct, and report these discretionary reviews. In general, the agency  conducts reviews in an informal manner; therefore, documentation does  not exist for the procedures or standards used to conduct these reviews.  However, officials described considering these factors to prioritize their  reviews: (1) the level of congressional interest in a specific review, (2)  OGC’s input on which rules should be reviewed, and (3) the number of  petitions and appeals SBA has received regarding a particular rule.  Reviews are conducted differently in the various program offices within  SBA. Moreover, the agency described a high turnover of employees, which  makes it important to document SBA reviews and processes. Currently, it  does not appear that the agency documents its review and processes.
section_title: Appendix XI: Department of Labor’s Employee Benefit Security Administration: Example of a Documented Formal Review
paragraphs: Employee Benefit Security Administration’s (EBSA) retrospective  regulatory review process was the most documented and detailed formal  review process included in our review. According to EBSA officials and  our review of EBSA documentation on its Regulatory Review Program  (the Program), the agency established its program as a continuing and  systematic process that allows the agency to periodically reviews its  regulations to determine whether they need to be modified or updated.  The Program takes into account technology, industry, economic,  compliance and other factors that may adversely affect a rule’s continued  usefulness, viewed with respect to either costs or benefits. According to  program documentation, through the integration of prescribed review  criteria, regulatory reviews conducted under the Program would also help  EBSA to satisfy the Section 610 requirement for periodic reviews of  agency regulations. In addition, the Program provides information and  data that assists EBSA in conducting regulatory reviews of EBSA  regulations in accordance with the requirements of Executive Order  12866.
EBSA’s regulatory review process is conducted annually by a Regulatory  Review Committee (RRC) composed of the Counsel for Regulation, Office  of the Solicitor’s Plan Benefits and Security Division (or his delegate), and  the Directors of the following offices (or their respective delegates): Office  of Regulations and Interpretations, Office of Policy and Research, Office of  Enforcement, Office of Health Plan Standards and Compliance Assistance,  and Office of Exemption Determinations. The Director of Regulations and  Interpretations (or his delegate) chairs the RRC. EBSA’s review process  consists of three formal phases: (1) selection of regulations for further  review, (2) substantive review of the selected regulations, and (3)  reporting review results to high-level management and the public. need further review in a written report to the Assistant Secretary,  including an explanation of the reasons for its recommendations. The  factors that the RRC considers when preliminarily reviewing the  regulations are:    whether the regulation is subject to review under the RFA;    whether the regulation is subject to review under statutory or Executive  Order requirements other than the RFA;    absolute age of regulation (time elapsed since promulgation);  time elapsed since regulation was last amended and nature of amendment  (major/minor);    court opinions adjudicating issues arising under regulation;    number of EBSA investigations that have found violations of regulation;    number of public requests received for interpretation of regulation;   type(s) of plans affected by the regulation;    number of plans affected;    cumulative number of participants and beneficiaries affected by    cumulative amount of plan assets affected by regulation;  relative difficulty of compliance with regulation for the regulated entities  (complexity, understandability);    potential for cost burden as compared with intended benefits of the    extent to which development of new technology or industry practice since  promulgation may reduce effectiveness of regulation;    extent to which legal changes (statutory, regulatory, executive order)  since promulgation of the regulation may affect its validity;    significance of the regulation with respect to EBSA’s goals;    significance of the regulation with respect to enforcement, compliance  assistance and voluntary compliance efforts; and    availability of information pertinent to evaluating the regulation. noted in the past, many agencies have not yet taken. Specifically, the  program sets threshold criteria for what constitutes “significant impact”  and “substantial number of entities.” GAO has reported on numerous  occasions that the lack of clarity about these terms is a barrier to agency  conduct of reviews and has resulted in fewer reviews being conducted.  Therefore, this step in the review program appears to be a very useful  factor. Under EBSA’s approach for measuring these thresholds, the rules  to be reviewed each year are first subjected to quantitative analysis to  determine whether they are considered to have a significant economic  impact on a substantial number of small entities. For its initial Section 610  reviews, EBSA has adopted a uniform standard of $25 per plan participant  to measure the discretionary impact of regulations reviewed under Section  610, and whether it constitutes a “significant economic impact.” EBSA’s  definition of a small entity as an employee pension or welfare plan with  fewer than 100 participants is grounded in sections 104(a)(2) and (3) of  the Employee Retirement Income Security Act (ERISA), which permit the  Secretary to prescribe simplified annual reports for pension and welfare  plans with fewer than 100 participants. Additional details on these  definitions and how they were derived can be found in the agency’s  Regulatory Review Program guidance. whether the regulation overlaps, duplicates, or conflicts with other federal  statutes or rules or with nonpreempted state or local statutes or rules;    whether the regulation is overly complex and could be simplified without    whether the regulation may be based on outdated or superseded  employment, industrial, or economic practices or assumptions and  whether participants and/or beneficiaries of employee benefit plans may  be exposed to harm as a result;    whether the regulation may impose significant economic costs on  regulated entities and whether the benefit(s) or purpose(s) of the  regulation could be achieved as effectively through an alternative  regulatory approach that would impose less economic burden on  regulated industries;    whether an alternative regulatory approach that does not increase the  compliance burden for regulated industries could better serve the  purpose(s) of the regulation or provide better protection(s) to participants  and beneficiaries of employee benefit plans; and    whether it would be in the public interest to initiate particular actions  (e.g., contracting a research study, promulgating a Request for  Information, conducting a public hearing) within the authority of EBSA to  develop information or expertise pertinent to the regulation and relevant  to consideration of the above issues. in the Federal Register, before it issues a notice for proposed rulemaking.  (For an illustration of this process, see fig 7 in app. IV.)
section_title: Appendix XII: Comments from the Small Business Administration Office of Advocacy
section_title: Appendix XIII: GAO Contact and Acknowledgments
subsections: section_title: GAO Contact
paragraphs: Mathew J. Scire, Director, Strategic Issues (202) 512-6806,  sciremj@gao.gov.
section_title: Acknowledgments
paragraphs: Tim Bober, Assistant Director, and Latesha Love, Analyst-in-Charge,  managed this assignment. Other staff who made key contributions to this  assignment were Matt Barranca, Jason Dorn, Tim Guinane, Andrea Levine,  Shawn Mongin, Bintou Njie, Joe Santiago, Stephanie Shipman, Michael  Volpe, and Greg Wilmoth.