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. Multiple  factors helped or impeded the conduct and usefulness of retrospective  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. 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. 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. 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, 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. 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. Additional Opportunities Exist to Facilitate Congressional Oversight and Public Participation in the Rulemaking 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. 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. In our 2013 review of international regulatory cooperation we again found  opportunities to better facilitate public participation in regulatory activities. 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. 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. 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. Regulatory Reform: Procedural and Analytical Requirements in Federal  Rulemaking.
Why GAO Did This Study

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.

What GAO Found

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.