	Prior GAO Work Identified Benefits and Weaknesses of Rulemaking Procedures and Practices

Federal regulation, like taxing and spending, is one of the basic tools of  government used to implement public policy. Agencies publish thousands  of regulations each year to achieve goals such as ensuring that workplaces,  air travel, and food are safe; that the nation’s air, water, and land are not  polluted; and that the appropriate amounts of taxes are collected. Because  regulations affect so many aspects of citizens’ lives, it is crucial that  rulemaking procedures and practices be effective and transparent. Over  the last decade, at the request of Congress, we have prepared over 60  reports and testimonies reviewing crosscutting aspects of those  rulemaking procedures and practices. These include: (1) regulatory analysis and accountability requirements,  (2) presidential and congressional oversight of agency rulemaking, and (3) notice and comment rulemaking procedures under the Administrative  Procedure Act (APA). Our reviews identified at least four overall benefits associated with existing  regulatory analysis and accountability requirements:  Encouraging and facilitating greater public participation in  rulemaking—Some initiatives have encouraged and facilitated greater  public participation and consultation in rulemaking. On the other hand, we also identified at least four recurring reasons why  the requirements imposed by such initiatives have not been more effective:  Lack of clarity and other weaknesses in key terms and definitions— Unclear terms and definitions can affect the applicability and  effectiveness of certain requirements. For example, some requirements only apply to  rules for which an agency published a notice of proposed rulemaking,  but, as I will discuss later, we found that agencies issue many final rules  without associated proposed rules. A predominant focus on just one part of the regulatory process—More  analytical and procedural requirements have focused on agencies’  development of rules than on other phases of the regulatory process,  from the underlying statutory authorization, through effective  implementation and monitoring of compliance with regulations, to the  evaluation and revision of existing rules. In general, efforts to increase presidential  influence and authority over the regulatory process, primarily through the  mechanism of Office of Management and Budget (OMB) review of  agencies’ rulemaking, have become more significant and widely used over  the years. However, our reviews suggest that mechanisms to increase  congressional influence, such as procedures for Congress to disapprove  proposed rules, appear to have been less able to influence changes in  agencies’ rules to date. Although many of  those final actions without proposed rules were minor actions, 11 of the 61  major rules (for example, those with an impact of $100 million or more) did  not have NPRMs. At the same time, the number of final rules without proposed rules appears  to reflect, at least in part, agencies’ acceptance of procedures for  noncontroversial and expedited rulemaking actions known as “direct final”  and “interim final” rulemaking that were previously recommended by  ACUS. Some Issues and Emerging Trends Merit Attention

The findings and emerging issues reported in our body of work on federal  rulemaking suggest a few areas on which the subcommittee might consider  taking legislative action or sponsor further study:  generally reexamine rulemaking structures and processes, including the   address previously identified weaknesses of existing statutory   promote additional improvements in the transparency of agencies’   open a broader examination of how developments in information  technology might affect the notice and comment rulemaking process. Regulatory Reform: Procedural and Analytical Requirements in Federal  Rulemaking. Highlights

		What GAO Recommends

			GAO recommends that OMB and the agencies take steps to improve review processes and compliance with the act.
Why GAO Did This Study

Federal regulation is one of the basic tools of government used to implement public policy. Agencies publish thousands of regulations each year to achieve goals such as ensuring that workplaces, air travel, and food are safe; that the nation's air, water, and land are not polluted; and that the appropriate amount of taxes are collected. Because regulations affect so many aspects of citizens' lives, it is crucial that rulemaking procedures and practices be effective and transparent. GAO, at the request of Congress, has prepared over 60 reports and testimonies during the past decade that review aspects of federal rulemaking procedures and practices. This testimony summarizes some of the general findings and themes that have emerged from GAO's body of work on federal regulatory processes and procedures, including areas on which Congress might consider taking legislative action or sponsoring further study. GAO's prior reports and testimonies contain a variety of recommendations to improve various aspects of rulemaking procedures and practices.

What GAO Found

GAO's prior evaluations highlighted both benefits and weaknesses of rulemaking procedures and practices in areas such as (1) regulatory analysis and accountability requirements, (2) presidential and congressional oversight of agency rulemaking, and (3) notice and comment rulemaking procedures under the Administrative Procedure Act (APA). GAO's reviews identified at least four overall benefits associated with existing regulatory analysis and accountability requirements: encouraging and facilitating greater public participation in rulemaking; improving the transparency of the rulemaking process; increasing the attention directed to rules; and increasing expectations regarding the analytical support for proposed rules. On the other hand, GAO identified at least four recurring reasons why such requirements have not been more effective: unclear key terms and definitions; limited scope and coverage; uneven implementation by agencies; and a predominant focus on just one part of the regulatory process. With regard to executive branch and congressional oversight of agencies' rulemaking, GAO has noted that efforts to increase presidential influence and authority over the regulatory process, through mechanisms such as the Office of Management and Budget's reviews of agencies' rulemaking, have become more significant over the years. However, mechanisms intended to increase congressional influence, such as procedures for disapproval of regulations under the Congressional Review Act, appear to have been less able to influence changes in agencies' rules to date. GAO's reviews of agencies' compliance with rulemaking requirements under APA pointed out that agencies often did not published notices of proposed rulemaking (to solicit public comments) before issuing final rules, including some major rules with an impact of $100 million or more on the economy. APA provides exceptions to notice and comment requirements for "good cause" and other reasons, but GAO noted that agencies' explanations for use of such exceptions were sometimes unclear. Also, several analytical requirements for proposed rules do not apply if an agency does not publish a proposed rule. However, some of the growth in final rules without proposed rules appeared to reflect increased use of "direct final" and "interim final" procedures intended for noncontroversial and expedited rulemaking. The findings and emerging issues reported in GAO's body of regulatory work suggested four areas on which Congress might consider taking action or studying further: (1) generally reexamining rulemaking structures and processes, (2) addressing previously identified weaknesses of existing statutory requirements, (3) promoting additional improvements in the transparency of agencies' rulemaking actions, and (4) opening a broader examination of how developments in information technology might affect the notice and comment rulemaking process.