In its recent draft report to Congress on the costs and benefits of federal regulations, OMB said that one of these changes was “to increase the openness and accountability of the review process.”Specifically, section 6 of Executive Order 12866 requires OIRA to “make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section.” Section 6 of the order also requires agencies to (1) “dentify for the public, in a complete, clear, and simple manner, the substantive changes between the draft submitted to OIRA for review and the action subsequently announced” and (2) “dentify for the public those changes in the regulatory action that were made at the suggestion or recommendation of OIRA.” The order does not require agencies to document when no changes are made during OIRA’s review or at the suggestion or recommendation of OIRA. Our third objective was to determine whether OIRA had made available to the public all documents exchanged between OIRA and the agency during the review process. To describe differences in the extent of documentation available to the public in the agencies’ files, we coded each regulatory action into one of the following three categories: (1) complete documentation, which could be a “redline/strikeout” version of the rule showing all changes made during the review, a memorandum to the file listing all of the changes, or a memorandum indicating that there were no such changes; (2) some documentation, which means we found indications of changes that had been made during OIRA’s review (e.g., memorandums or redline/strikeout versions), but the files did not indicate whether all such changes had been documented; and (3) no documentation, which means that there were no changes made during the review or that changes were made, but were not documented. We followed the same general procedure to describe the extent to which the agencies had documented for the public the changes made to the regulatory actions at the suggestion or recommendation of OIRA. Agencies Often Did Not Document Whether Changes Were Made to Rules While at OIRA

Executive Order 12866 directs agencies to “identify for the public, in a complete, clear, and simple manner, the substantive changes between the draft submitted to OIRA for review and the action subsequently announced.” The 4 agencies had complete documentation of the changes for about 26 percent of the 122 regulatory actions that we reviewed. The remaining 44 percent of the actions had no documentation available to the public indicating whether changes were made to the draft rule submitted to OIRA. The remaining agencies (HUD and OSHA) had no documentation for about one-third of their regulatory actions. Another 17 percent of the actions had some documentation of changes that had been made to the rules, but the files did not indicate whether all such changes had been made at OIRA’s suggestion or whether all OIRA-suggested changes had been documented. Other documents indicated that OIRA had suggested certain changes to the rule, but it was unclear whether those changes had been made. OSHA officials said that they would make the documentation available to the public upon request. Because we could not be sure that we had identified all of the documents that had been exchanged between the agencies and OIRA during the regulatory review process, we could not conclusively determine the extent to which OIRA had made such documents available to the public. It was unclear whether this absence of documentation meant that no changes had been made to the rules or that the changes were made, but they had not been documented. On the other hand, about 26 percent of the 122 regulatory actions that we reviewed in the 4 agencies had complete documentation available to the public of the changes made to rules while at OIRA, and about 24 percent had documentation of changes made at OIRA’s suggestion.
Why GAO Did This Study

Pursuant to a congressional request, GAO reviewed the regulatory review process, focusing on the Office of Information and Regulatory Affairs (OIRA) and four regulatory agencies, the Department of Housing and Urban Development (HUD) and Department of Transportation (DOT), the Department of Labor's Occupational Safety and Health Administration (OSHA), and the Environmental Protection Agency (EPA), and on whether: (1) the regulatory agencies had identified for the public the substantive changes made to their regulations between the draft they submitted to OIRA and the regulatory actions they subsequently announced; (2) the regulatory agencies identified for the public the changes made to their regulations at the suggestion or recommendation of OIRA; and (3) OIRA had made available to the public all documents exchanged between OIRA and the selected agencies during OIRA's review.

What GAO Found

GAO noted that: (1) EPA, DOT, HUD, and OSHA had complete documentation available to the public of all of the substantive changes made to their rules between the draft submitted to OIRA and the actions subsequently announced for about 26 percent of the 122 regulatory actions that GAO reviewed; (2) for about 30 percent of the regulatory actions, the agencies had some documentation available to the public indicating that changes had been made to the rules while at OIRA, but the information did not indicate whether all such changes had been documented; (3) for the remaining 44 percent of the regulatory actions, the agencies had no documentation available to the public of changes made during OIRA's review; (4) because Executive Order 12866 does not specifically require agencies to document that no changes were made to rules while they were under review at OIRA, the absence of documentation does not necessarily mean that the agencies were not complying with the order; (5) however, it was unclear whether the absence of documentation meant that no changes had been made to the rules or whether changes had been made but they had not been recorded; (6) the agencies had complete documentation available to the public of all of the changes that OIRA had suggested or recommended for about 24 percent of the 122 regulatory actions; (7) for about 17 percent of the regulatory actions, the agencies had some documentation available to the public indicating that OIRA had suggested changes to the rules, but the information did not indicate whether all such changes had been documented; (8) for the remaining 59 percent of the actions, the agencies had no documentation available to the public indicating whether changes had been made at the suggestion or recommendation of OIRA; (9) for some of these actions, the agencies had documentation available indicating that changes had been made to the rules during the rulemaking process, but it was unclear whether any of the changes were at OIRA's suggestion; (10) even those rules for which the agencies had complete documentation of all changes made while they were at OIRA and at the suggestion of OIRA, the documents were not always available to the public or easy to locate; and (11) GAO could not identify all of the documents that had been exchanged between the agencies and OIRA during the regulatory review process, so it could not be determined whether OIRA had made all such documents available to the public.