Federal Rulemaking: Regulatory Review Processes Could Be Enhanced
Published: 2014-03-11T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Federal regulation is a basic tool of government. Agencies issue thousands of regulations each year to achieve public policy goals such as ensuring that workplaces, air travel, foods, and drugs are safe; that the nation's air, water and land are not polluted; and that the appropriate amount of taxes is collected. Congresses and Presidents have taken a number of actions to refine and reform the regulatory process over the last several decades. Among the goals of such initiatives are enhancing oversight of rulemaking by Congress and the President, promoting greater transparency and participation in the process, and reducing regulatory burdens on affected parties.
Over the past two decades Congress has often asked GAO to evaluate the implementation of procedural and analytical requirements that apply to the rulemaking process. The importance of improving the transparency of the rulemaking process emerged as a common theme throughout GAO's body of work. Based on that body of work, this testimony addresses (1) GAO's findings and recommendations regarding federal agencies' retrospective reviews, (2) GAO's findings and OIRA's progress to date on GAO recommendations to improve the transparency of the regulatory review process, and (3) other opportunities for increasing congressional oversight and public participation in the rulemaking process.
GAO is not making recommendations in this testimony.
section_title: What GAO Found
paragraphs: In 2007, GAO found that agencies had conducted more retrospective reviews of the costs and benefits of existing regulation than was readily apparent, especially to the public. Requirements in statutes or executive directives were sometimes the impetus for reviews, but agencies more often conducted these retrospective reviews based on their own discretionary authorities. Agencies reported that discretionary reviews more often generated actions, such as amending regulations or changes to guidance. GAO also found that multiple factors, such as data limitations and lack of transparency, impeded agencies' reviews. GAO made 7 recommendations in 2007 to improve the effectiveness and transparency of retrospective regulatory reviews. Among GAO's recommendations were: minimum standards for documenting and reporting completed review results; including public input as a factor in regulatory review decisions; and consideration of how agencies will measure the performance of new regulations. In 2011 and 2012, the administration issued new directives to agencies on how they should plan and conduct analyses of existing regulations that addressed each of GAO's recommendations.
By executive order, the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) reviews draft proposed and final rules from executive agencies, other than independent regulatory agencies. Among the purposes of these reviews are ensuring that regulations are consistent with applicable law and the President's priorities and that decisions made by one agency do not conflict with the policies or actions taken or planned by another. Both OIRA and executive agencies are also required to disclose certain information about the review process. In 2003 and 2009, GAO found that the OIRA regulatory review process often resulted in changes to agencies' rules, but the transparency and documentation of the review process could be improved. GAO made 12 recommendations to OMB about the review process. For example, GAO recommended that OMB provide guidance to agencies regarding documentation of the reasons for an agency's withdrawal of a draft rule from OIRA review and the source or impetus of changes made to rules. OMB to date has implemented only 1 of those 12 recommendations—to clarify information posted about the topic and participants in meetings with outside parties on rules under review. GAO believes that its past recommendations still have merit and would improve the transparency of the OIRA review process.
GAO's recent work continues to highlight progress in facilitating transparency and public participation as well as room for improvement. In 2012, GAO found that agencies often requested comments when issuing major rules without a notice of proposed rulemaking but missed an opportunity to improve those rules because they did not always respond to the comments. GAO's 2013 review of international regulatory cooperation also found opportunities to better facilitate public participation in these activities. GAO also found that effective international regulatory cooperation requires interagency coordination and effective collaboration with federal agency officials' foreign counterparts. Agency officials stated that they cooperate with their foreign counterparts (1) because they are operating in an increasingly global environment and many products that agencies regulate originate overseas and (2) in an effort to gain efficiencies—for example, by sharing resources or avoiding duplicative work.

section_title: Letter
paragraphs: I am pleased to be here today to discuss the federal rulemaking process,  focusing in particular, at your request, on agencies’ efforts to  retrospectively review their existing rules and the regulatory review  process coordinated through the Office of Management and Budget’s  (OMB) Office of Information and Regulatory Affairs (OIRA).
Federal regulation is a basic tool of government. Agencies issue  thousands of regulations each year to achieve public policy goals such as  ensuring that workplaces, air travel, food, and drugs are safe; that the  nation’s air, water, and land are not polluted; and that the appropriate  amount of taxes is collected. Congresses and Presidents have taken a  number of actions to refine and reform the regulatory process over the  past 30 years. Among the goals of such initiatives are enhancing  oversight of rulemaking by Congress and the President, promoting  greater transparency and participation in the process, and reducing  regulatory burdens on affected parties. OIRA is a key player in the  regulatory process with its responsibility for ensuring that regulations are  consistent with applicable law, the President’s priorities, and the  principles set forth in executive orders, among other things.
During the past two decades Congress has often asked GAO to evaluate  the implementation of procedural and analytical requirements that apply  to the rulemaking process. Drawing on that body of work, my remarks  today will specifically summarize (1) our findings and recommendations  regarding federal agencies’ retrospective regulatory reviews, (2) our  findings and OIRA’s progress to date on our recommendations to improve  the transparency of the regulatory review process, and (3) other  opportunities our work has identified for increasing congressional  oversight and public participation in the rulemaking process.
My testimony today is primarily based on prior reports and testimonies on  the rulemaking process prepared at the request of Congress. We have  updated some of the references in this statement to reflect more recent  executive orders and related OMB guidance. We used multiple  methodologies to develop the findings, conclusions, and  recommendations for these prior products. A more detailed discussion of  prior reports’ objectives, scope, and methodology, including our  assessment of data reliability, is available in the reports cited in the  related products list at the end of this statement. The work upon which  this testimony is based was conducted in accordance with generally  accepted government auditing standards. Those standards require that  we plan and perform the audit to obtain sufficient, appropriate evidence to  provide a reasonable basis for our findings and conclusions based on our  audit objectives. We believe that the evidence obtained provides a  reasonable basis for our findings and conclusions based on our audit  objectives.
In brief, the importance of improving the transparency of the rulemaking  process emerged as a common theme throughout our prior body of work.  In 2007, we found that agencies were conducting many more  retrospective reviews of their existing regulations than was readily  apparent to non-federal parties, and documentation and reporting on  results of those reviews was often lacking. In a series of products from  1996 through 2009 examining implementation of the OIRA regulatory  review process, we consistently found that OIRA’s reviews of agencies’  draft rules often resulted in changes, but the transparency and  documentation of the review process could be improved. However, OIRA  only implemented 1 of our 12 most recent recommendations on this OIRA  regulatory review process. Our recent work has continued to highlight  both progress made in facilitating transparency, oversight, and public  participation in regulatory actions as well as room for improvement.
subsections: section_title: Executive Orders and OMB Guidance Addressed Our Prior Recommendations to Improve Effectiveness and Transparency of Retrospective Reviews
paragraphs: In 2007, we evaluated retrospective review activities conducted between  2001 and 2006 by nine agencies covering health, safety, environmental,  financial, and economic regulations. Agencies reported that the main  purpose of most of their reviews was to examine the effectiveness of the  implementation of regulations. We found that the agencies had conducted  more retrospective reviews, and a greater variety of these reviews (such  as ones examining the efficiency and effectiveness of regulations and  others identifying opportunities to reduce regulatory burdens) than was  readily apparent, especially to the public. Reviews mandated by  requirements in statutes or executive orders and related OMB  memorandums were sometimes the impetus for reviews, but agencies  more often exercised their own discretionary authorities to review  regulations. As a result of these reviews, agencies amended regulations,  changed guidance and related documents, decided to conduct additional  studies, and confirmed that existing rules achieved the intended results.  Agencies noted that discretionary reviews generated additional action  more often than mandatory reviews, which most often resulted in no  changes.
We also found that agencies, to varying extents, were developing written  procedures, processes, and standards to guide how they select which  rules to review, analyze those rules, and report the results. 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 also identified a lack  of transparency in agency review processes as a barrier and said they  were rarely aware of the agencies’ reviews. We made seven  recommendations for executive action in the 2007 report to improve the  effectiveness and transparency of retrospective regulatory reviews.  Among the elements that we recommended incorporating in policies,  procedures, or guidance were: minimum standards for documenting and  reporting completed review results; inclusion of public input as a factor in  regulatory review decisions; and consideration of how agencies will  measure the performance of new regulations.
OMB took actions that addressed our recommendations which, if  effectively implemented, will improve the transparency, credibility, and  effectiveness of agencies’ retrospective review efforts. For example, in  2011 and 2012, the administration issued new directives to agencies on  how they should plan and conduct analyses of existing regulations,  among other subjects, that addressed each of our prior  recommendations. Collectively, they directed executive agencies and  encouraged independent regulatory agencies to develop and implement  plans to periodically review existing significant regulations. OMB’s  guidance on the 2011 and 2012 executive orders advised agencies to  identify in their final plans specific reforms and initiatives that will  significantly reduce existing regulatory burdens and promote economic  growth and job creation.
We are currently completing a report at the request of Senators Ron  Johnson and Mark Warner concerning agencies’ retrospective regulatory  analyses under the 2011 and 2012 executive orders. The report will  identify for selected agencies (1) the results and anticipated outcomes of  completed retrospective analyses included in agencies’ review plans and  progress reports, (2) strategies, practices, or factors that facilitated or  limited agencies’ ability to implement retrospective analyses, and (3) the  extent to which agencies are incorporating retrospective analyses into  their processes for measuring and achieving agency priority goals.
section_title: Aspects of the OIRA Regulatory Review Process Could Be More Transparent
paragraphs: In a series of products from 1996 through 2009 examining implementation  of the OIRA regulatory review process, we consistently found that OIRA’s  reviews of agencies’ draft rules often resulted in changes, but the  transparency and documentation of the review process could be  improved. Unfortunately, as I will detail below, to date, OIRA has  implemented only 1 of our 12 most recent recommendations on this  process.
A brief explanation of OIRA’s review process provides helpful context for  understanding why these findings and recommendations remain relevant  today. Centralized presidential reviews of agency’s regulations have a  long history and can be traced back to a program established by  President Nixon in 1971. President Reagan’s Executive Order 12291 in  1981 expanded the scope of presidential reviews of rulemakings and  delegated responsibility for this review function to OIRA. President  Clinton’s issuance of Executive Order 12866 in 1993 established the  current process and requirements regarding reviews of covered agencies’  draft proposed and final rules. More recently, in 2011, President Obama  issued Executive Order 13563, which supplemented and reaffirmed the  principles, structures, and definitions governing contemporary regulatory  review established in the 1993 executive order. The basic procedures and  requirements for the regulatory review process today follow the provisions  of that 1993 executive order. This practice of centralized regulatory  reviews is now well established as part of the rulemaking process,  although it continues to attract some controversy and criticism.
In essence, OIRA is responsible for the coordinated review of agencies’  draft proposed and final rules to ensure that regulations are consistent  with applicable law, the President’s priorities, and the principles set forth  in executive orders. OIRA is also to ensure that decisions made by one  agency do not conflict with the policies or actions taken or planned by  another agency. Executive agencies, except for independent regulatory  agencies, are required to submit their significant regulatory actions to  OIRA for review. OIRA is generally required to complete its review within  90 days after an agency formally submits a draft regulation. The review  process can be summarized as follows:
OIRA reviews agencies’ draft rules at both the proposed and final  stages of rulemaking. In each phase, the rulemaking agency submits  a regulatory review package to OIRA (consisting of the rule, any  supporting materials, and a transmittal form) and OIRA initiates a  review.
During the review process, OIRA analyzes the draft rule in light of  executive order principles and discusses the package with staff and  officials at the rulemaking agency, as well as with other agencies with  which interagency coordination will be necessary. In the course of that  process, the draft rule that is submitted by the agency often changes.  In some cases, agencies withdraw the draft rule from OIRA during the  review period and the rule may or may not be subsequently  resubmitted to OIRA.
At the end of the review period, OIRA either concludes that the draft  rule is consistent with the principles of the executive order (which  occurs in the vast majority of cases) or returns the rule to the agency  “for further consideration.”
If a draft rule that was determined to be consistent with the executive  order has been modified in the course of the review, the rule is coded  in the OIRA database as “consistent with change” (regardless of the  source or extent of the change). If no changes have been made to the  draft rule during the review, the rule is coded as “consistent without  change.” OIRA only codes rules as “consistent without change” if they  are exactly the same at the end of the review period as the original  submission. Even editorial changes made at the rulemaking agency’s  initiative can cause a rule to be coded “consistent with change.”
Executive Order 12866 also contains several transparency provisions that  require both OIRA and agencies to disclose certain information about the  OIRA review process. For example, the order requires OIRA to disclose  information about communications between OIRA and persons not  employed by the executive branch pertinent to rules under OIRA’s review  and, if OIRA returns a rule to the issuing agency for reconsideration, the  executive order requires OIRA to provide a written explanation for the  return. If a rule is withdrawn from OIRA review, however, the order has no  requirement for OIRA or the regulatory agency to provide a written  explanation. After the rule has been published in the Federal Register or  otherwise issued to the public, the regulatory agency publishing the rule is  required to make available to the public the information provided to OIRA in  accordance with the executive order;  identify for the public, in a complete, clear, and simple manner, the  substantive changes between the draft submitted to OIRA and the  action subsequently announced; and  identify for the public those changes in the regulatory action that were  made at the suggestion or recommendation of OIRA.
These transparency requirements and documentation are not simply a  matter of administrative paperwork. Agencies’ documentation of the OIRA  review process and its outcomes become part of the regulatory docket for  each rulemaking. The docket publicly documents the support and basis  for decisions made about the substance of the rule, thus serving as a  source of information for decision makers, the general public, and for  purposes of potential judicial review.
Since the issuance of Executive Order 12866, Congress has periodically  asked us to examine the implementation of the OIRA regulatory review  process. Multiple products we issued from 1996 through 2009  consistently found that the OIRA regulatory review process often resulted  in changes to agencies’ rules but the transparency and documentation of  the review process could be improved. For example, in 2003, we  examined 85 rules from nine health, safety, or environmental agencies  that had been changed, returned or withdrawn as a result of the OIRA  review process. We found that the OIRA review process had significantly  affected 25 of those 85 rules. While almost all returned rules were from  the Department of Transportation, the rules that were most often  significantly changed were from the Environmental Protection Agency.  OIRA’s suggestions appeared to have at least some effect on almost all  of the 25 rules’ potential costs and benefits or the agencies’ estimates of  those costs and benefits. The agencies’ docket files did not always  provide clear and complete documentation of the changes made during  OIRA’s review or at OIRA’s suggestion, as required by the executive  order, though a few agencies exhibited exemplary transparency practices.
In 2009, we again found that OIRA’s reviews of agencies’ draft rules often  resulted in changes. Of our 12 case-study rules subject to OIRA review,  10 reviews resulted in changes, about half of which included changes to  the regulatory text. Agencies used various methods to document OIRA’s  reviews and these methods generally met disclosure requirements.  However, we found that agencies could improve the transparency of this  documentation. In particular, agencies did not always clearly attribute  changes made at the suggestion of OIRA. Additionally, agencies’  interpretations were not necessarily consistent regarding what constitutes  a substantive change that should be documented to comply with the  executive order transparency requirements. Both of these issues had  been identified in our earlier work.
In our 2003 and 2009 reports, we made a total of 12 recommendations to  OMB about the review process under Executive Order 12866 (see  appendix I for a list of the recommendations). In 2003 we made 8  recommendations targeting several aspects of the OIRA review process  that remained unclear and where improvements could allow the public to  better understand the effects of OIRA’s review. For example, these  aspects included addressing a lack of documentation requirements  regarding (1) staff-level exchanges during the review process, (2) the  reasons for withdrawal of a rule, or (3) the source or impetus of changes  made to rules. In 2009, based on similar findings, we made 4 additional  recommendations that OMB provide guidance to agencies to improve  transparency and documentation of the OIRA review process. OMB  generally agreed with the 4 recommendations in our 2009 report, but  disagreed with 7 of the 8 recommendations in our 2003 report.
OIRA to date has implemented only 1 of those 12 recommendations—to  more clearly indicate in the posted information which regulatory action  was being discussed and the affiliations of participants when meeting with  outside parties regarding draft rules under OIRA review. We believe that  our past recommendations still have merit and, if acted upon, would  improve the transparency of the OIRA review process. For example,  regarding our recommendation that the Administrator of OIRA should  establish procedures whereby either OIRA or the agencies disclose the  reasons why rules are withdrawn from OIRA review, we note that OIRA’s  records on the outcomes of regulatory reviews indicate many more  withdrawals, which currently require no explanation, than returns, which  do require explanations.
Importantly, other organizations have raised concerns about the  timeliness of OIRA regulatory reviews. In particular, the Administrative  Conference of the United States (ACUS) issued a report and adopted a  statement in December 2013 on improving the timeliness of OIRA’s  regulatory review process. ACUS noted an increase in average review  times since 2011, including many reviews that extended well past the  limits established in Executive Order 12866, while also acknowledging  that OIRA had recently made progress in addressing the backlog. ACUS  offered a set of principles for improving the timeliness of review and the  transparency concerning the causes for delays, such as that OIRA  should, whenever possible, adhere to the timeliness provisions of  Executive Order 12866 and, if unable to complete the review of an  agency’s draft rule within a reasonable time—but in no event beyond 180  days after submission—should inform the public as to the reasons for the  delay or return the rule to the submitting agency.
section_title: Additional Opportunities Exist to Facilitate Congressional Oversight and Public Participation in the Rulemaking Process
paragraphs: Our recent work has continued to highlight both progress made in  facilitating transparency, oversight, and public participation in regulatory  actions as well as room for improvement. Improvements made in  transparency of the rulemaking process benefit not only the public but  also congressional oversight. In 2012, we reviewed a generalizable  random sample of 1,338 final rules published during calendar years 2003  through 2010 to provide information on the frequency, reasons for, and  potential effects of agencies issuing final rules without a notice of  proposed rulemaking (NPRM). Before issuing a final rule, agencies are  generally required to publish an NPRM in the Federal Register. Agencies  must then respond to public comments when issuing final rules. However,  agencies may use exceptions in certain circumstances to forgo this  NPRM process to expedite rulemaking. For example, agencies may use  the good cause exception when they find that notice and comment  procedures are “impracticable, unnecessary, or contrary to the public  interest.” We found that agencies frequently cited the good cause  exception and other statutory exceptions to publish final rules without  NPRMs. Agencies did not publish an NPRM for about 35 percent of major  rules and about 44 percent of nonmajor rules published from 2003  through 2010.
We found that agencies, though not required, often requested comments  on major final rules issued without an NPRM, but they did not always  respond to the comments received. For example, we found that  agencies requested comments on 77 of the 123 major rules issued  without an NPRM in our sample. The agencies did not issue a follow-up  rule or respond to comments on 26 of these 77. This is a missed  opportunity, because we found that, when agencies did respond to public  comments, they often made changes to improve the rules. Each of these  26 rules is economically significant and some of these rules have an  effect of one billion dollars a year or more. To better balance the benefits  of expedited rulemaking procedures with the benefits of public comments  that are typically part of regular notice-and-comment rulemakings, and  improve the quality and transparency of rulemaking records, we  recommended that OMB, in consultation with ACUS, issue guidance to  encourage agencies to respond to comments on final major rules, for  which the agency has discretion, that are issued without a prior notice of  proposed rulemaking. OMB stated that it did not believe it necessary to  issue guidance on the topic at that time and has not, to date, taken any  action to implement our recommendation. We continue to believe that the  recommendation has merit and urge OMB to reconsider its prior position.
In our 2013 review of international regulatory cooperation we again found  opportunities to better facilitate public participation in regulatory activities.  In that report, we noted the growing importance of considering regulations  in an international context. Agency officials stated that they cooperate  with their foreign counterparts (1) because they are operating in an  increasingly global environment and many products that agencies  regulate originate overseas and (2) in an effort to gain efficiencies—for  example, by sharing resources or avoiding duplicative work.
Agencies’ efforts to cooperate on regulatory programs may also facilitate  trade and support the competitiveness of U.S. business. Agency officials  we interviewed said that stakeholder involvement is important and  nonfederal stakeholders are uniquely positioned to identify and call  attention to unnecessary differences among U.S. regulations and those of  its trading partners. However, stakeholders we spoke with, such as  academics, organizations representing businesses, and consumer  advocacy groups, said it can be challenging for them to provide input into  agencies’ international regulatory cooperation activities because of the  required resources and the difficulty of becoming aware of such activities.
In addition to effective collaboration with affected nonfederal  stakeholders, effective international regulatory cooperation requires  interagency coordination and effective collaboration with federal agency  officials’ foreign counterparts. In an environment of constrained resources  it is even more important for agencies to share knowledge on the effective  implementation of international regulatory cooperation.
We recommended that the Regulatory Working Group, a forum chaired  by the OIRA Administrator to assist agencies in identifying and analyzing  important regulatory issues, establish one or more mechanisms to  facilitate staff level collaboration on international regulatory cooperation  issues and include independent regulatory agencies. Such a mechanism  could be addressed as part of forthcoming guidance on Executive Order  13609. This May 2012 executive order on promoting international  regulatory cooperation was intended to provide high-level support and  direction for U.S. agencies’ international regulatory cooperation efforts.  The executive order directed agencies to consider addressing  unnecessary differences in existing regulations and describes processes  to help avoid regulatory divergence in the future. If implemented, our  recommendation regarding a staff level collaboration mechanism could  help ensure that U.S. agencies have the necessary tools and guidance to  effectively implement international regulatory cooperation.
Chairman Tester, Ranking Member Portman, and Members of the  Subcommittee, this concludes my prepared statement. Once again, I  appreciate the opportunity to testify on these important issues. I would be  pleased to address any questions you or other members of the  subcommittee might have at this time.
section_title: GAO Contact
paragraphs: If additional information is needed regarding this testimony, please  contact Michelle Sager, Director, Strategic Issues, at (202) 512-6806 or  sagerm@gao.gov.
section_title: Appendix I: Relevant GAO Recommendations on Regulatory Processes
paragraphs: Appendix I: Relevant GAO Recommendations  on Regulatory Processes Recommendation  Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews,  Published: Sep. 22, 2003.  The Director of the Office of Management and Budget should improve the  implementation of the transparency requirements in the executive order that  are applicable to rulemaking agencies. Specifically, the Administrator should  instruct agencies to put information about changes made in a rule after  submission for OIRA’s review and those made at OIRA’s suggestion or  recommendation in the agencies’ public rulemaking dockets, and to do so  within a reasonable period after the rules have been published.
The Director of the Office of Management and Budget should improve the  implementation of the transparency requirements in the executive order that  are applicable to rulemaking agencies. Specifically, the Administrator should  define the types of “substantive” changes during the OIRA review process that  agencies should disclose as including not only changes made to the regulatory  text but also other, noneditorial changes that could ultimately affect the rules’  application (e.g., explanations supporting the choice of one alternative over  another and solicitations of comments on the estimated benefits and costs of  regulatory options).
The Director of the Office of Management and Budget should improve the  implementation of the transparency requirements in the executive order that  are applicable to OIRA. Specifically, the Administrator should establish  procedures whereby either OIRA or the agencies disclose the reasons why  rules are withdrawn from OIRA review.
The Director of the Office of Management and Budget should improve the  implementation of the transparency requirements in the executive order that  are applicable to OIRA. Specifically, OIRA should reexamine its current policy  that only documents exchanged by OIRA branch chiefs and above need to be  disclosed because most of the documents that are exchanged while rules are  under review at OIRA are exchanged between agency staff and OIRA desk  officers.
The Director of the Office of Management and Budget should improve the  implementation of the transparency requirements in the executive order that  are applicable to OIRA. Specifically, the Administrator should more clearly  indicate in the meeting log which regulatory action was being discussed and  the affiliations of the participants in those meetings.
The Director of the Office of Management and Budget should change OIRA’s  database to clearly differentiate within the “consistent with change” outcome  category which rules were substantively changed at OIRA’s suggestion or  recommendation and which were changed in other ways and for other reasons.
The Director of the Office of Management and Budget should define the  transparency requirements applicable to the agencies and OIRA in section 6 of  Executive Order 12866 in such a way that they include not only the formal  review period, but also the informal review period when OIRA says it can have  its most important impact on agencies’ rules. Doing so would make the trigger  for the transparency requirements applicable to OIRA’s and the agencies’  interaction consistent with the trigger for the transparency requirements  applicable to OIRA regarding its communications with outside parties.
Executive Office of the  President: Office of  Management and Budget  Recommendation  The Director of the Office of Management and Budget should improve the  implementation of the transparency requirements in the executive order that  are applicable to rulemaking agencies. Specifically, the Administrator should  encourage agencies to use “best practice” methods of documentation that  clearly describe those changes (e.g., like those used by the Food and Drug  Administration, the Environmental Protection Agency’s Office of Water, or the  Federal Motor Carriers Safety Administration).  Reexamining Regulations: Opportunities Exist to Improve Effectiveness and Transparency of Retrospective Reviews,  GAO-07-791: Published July 16, 2007.  The Director of the Office of Management and Budget, through the  Administrator of the Office of Information and Regulatory Affairs (OIRA), and  the Chief Counsel for Advocacy should develop guidance to regulatory  agencies to consider or incorporate into their policies, procedures, or agency  guidance documents that govern regulatory review activities 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.
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 should develop guidance to regulatory agencies to  consider or incorporate into their policies, procedures, or agency guidance  documents that govern regulatory review activities 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.
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 should develop guidance to regulatory agencies to  consider or incorporate into their policies, procedures, or agency guidance  documents that govern regulatory review activities 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.
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 should develop guidance to regulatory agencies to  consider or incorporate into their policies, procedures, or agency guidance  documents that govern regulatory review activities 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.
Recommendation  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 should develop guidance to regulatory agencies to  consider or incorporate into their policies, procedures, or agency guidance  documents that govern regulatory review activities 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.
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 should develop guidance to regulatory agencies to  consider or incorporate into their policies, procedures, or agency guidance  documents that govern regulatory review activities steps to promote sustained  management attention and support to help ensure progress in institutionalizing  agency regulatory review initiatives.
Executive Office of the  President: Office of  Management and Budget: Office  of Information and Regulatory  Affairs and the Small Business:  Office of Advocacy  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 should 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.  Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the  Transparency of OMB Regulatory Reviews, GAO-09-205: Published: Apr. 20, 2009.
If the current administration retains Executive Order 12866, or establishes  similar transparency requirements, to improve the monitoring and evaluation of  rules development and the transparency of the review process, the Director of  OMB, through the Administrator of OIRA, should define in guidance what types  of changes made as a result of the OIRA review process are substantive and  need to be publicly identified to more consistently implement the order’s  requirement to provide information to the public “in a complete, clear, and  simple manner.”
If the current administration retains Executive Order 12866, or establishes  similar transparency requirements, to improve the monitoring and evaluation of  rules development and the transparency of the review process, the Director of  OMB, through the Administrator of OIRA, should direct agencies to clearly  state in final rules whether they made substantive changes as a result of the  OIRA reviews to more consistently implement the order’s requirement to  provide information to the public “in a complete, clear, and simple manner.”
If the current administration retains Executive Order 12866, or establishes  similar transparency requirements, to improve the monitoring and evaluation of  rules development and the transparency of the review process, the Director of  OMB, through the Administrator of OIRA, should standardize how agencies  label documentation of these changes in public rulemaking dockets to more  consistently implement the order’s requirement to provide information to the  public “in a complete, clear, and simple manner.”
Executive Office of the  President: Office of  Management and Budget  Recommendation  If the current administration retains Executive Order 12866, or establishes  similar transparency requirements, to improve the monitoring and evaluation of  rules development and the transparency of the review process, the Director of  OMB, through the Administrator of OIRA, should instruct agencies to clearly  attribute those changes “made at the suggestion or recommendation of OIRA  to more consistently implement the order’s requirement to provide information  to the public “in a complete, clear, and simple manner.”  Federal Rulemaking: Agencies Could Take Additional Steps to Respond to Public Comments, GAO-13-21: Published: Dec.  20, 2012.  To better balance the benefits of expedited rulemaking procedures with the  benefits of public comments that are typically part of regular notice-and- comment rulemakings, and improve the quality and transparency of rulemaking  records, the Director of OMB, in consultation with the Chairman of  Administrative Conference of the United States (ACUS), should issue guidance  to encourage agencies to respond to comments on final major rules, for which  the agency has discretion, that are issued without a prior notice of proposed  rulemaking.  International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency  Guidance, GAO-13-588: Published: Aug. 1, 2013.  To ensure that U.S. agencies have the necessary tools and guidance for  effectively implementing international regulatory cooperation, the Regulatory  Working Group, as part of forthcoming guidance on implementing Executive  Order 13609, should establish one or more mechanisms, such as a forum or  working group, to facilitate staff level collaboration on international regulatory  cooperation issues and include independent regulatory agencies.
Agency affected  Executive Office of the  President: Office of  Management and Budget  Executive Office of the  President: Office of  Management and Budget  Executive Office of the  President: Office of  Management and Budget:  Regulatory Working Group  Checkmarks indicate that the recommendation has been closed as implemented.
section_title: Related GAO Products
paragraphs: International Regulatory Cooperation: Agency Efforts Could Benefit from  Increased Collaboration and Interagency Guidance. GAO-13-588.  Washington, D.C.: August 1, 2013.
Federal Rulemaking: Agencies Could Take Additional Steps to Respond  to Public Comments. GAO-13-21. Washington, D.C.: December 20, 2012.
Federal Rulemaking: Improvements Needed to Monitoring and Evaluation  of Rules Development as Well as to the Transparency of OMB Regulatory  Reviews. GAO-09-205. Washington, D.C.: April 20, 2009.
Reexamining Regulations: Opportunities Exist to Improve Effectiveness  and Transparency of Retrospective Reviews. GAO-07-791. Washington,  D.C.: July 16, 2007.
Federal Rulemaking: Past Reviews and Emerging Trends Suggest Issues  That Merit Congressional Attention. GAO-06-228T. Washington, D.C.:  November 1, 2005.
Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the  Transparency of Those Reviews. GAO-03-929. Washington, D.C.:  September 22, 2003.
Regulatory Reform: Procedural and Analytical Requirements in Federal  Rulemaking. GAO/T-GGD/OGC-00-157. Washington, D.C.: June 8, 2000.
Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always  Clearly Documented. GAO/GGD-98-31. Washington, D.C.: January 8,  1998.
Regulatory Reform: Agencies’ Efforts to Eliminate and Revise Rules Yield  Mixed Results. GAO/GGD-98-3. Washington, D.C.: October 2, 1997.
Regulatory Reform: Implementation of the Regulatory Review Executive  Order. GAO/T-GGD-96-185. Washington, D.C.: September 25, 1996.
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